Update re Laptop Searches
On April 21, 2008, the Ninth Circuit Court of Appeals issued a decision which confirmed a long line of holdings from courts in other parts of the country finding that a Customs official at a border is not required to have probable cause before requiring a traveler to turn on his computer and allow its contents to be viewed. The case is U.S. v Arnold, No. 06-50581, D.C. No. CR05-00772-DDP. Mr. Arnold had been in the Philippines on a three week trip. Upon arrival at LAX, he was asked by Customs to boot-up his device as a means to make sure it was a real computer. Upon doing so, one Customs inspector handed the computer to another, who started looking at its contents and found child pornography. Several charges were brought against Mr. Arnold who sought to suppress the evidence arguing there needed to be probable cause to conduct the search. The district court granted the motion to suppress, leading to the Government’s appeal, which leads to this latest decision.
In support of the district court’s decision, Mr. "Arnold argue[d] that "laptops are fundamentally different from traditional closed containers, and analogize[d] them to "homes" and the "human mind." Arnold’s analogy of a laptop to a home is based on his conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He argue[d] that a laptop is like the "human mind" because of its ability to record ideas, e-mail, internet chats and web-surfing habits."
In its decision, the Ninth Circuit relied on a series of cases, all of which taken together hold that no reasonable suspicion is required for routine searches, which includes searches of briefcases, luggage, purses, wallets, pockets, papers found in containers such as pockets, pictures, film and other graphic material. In articulating its reasoning, the Ninth Circuit did acknowledge that for the search of a body cavity, alimentary canal, an involuntary x-ray or even a strip search, some level of probable cause is required, although that level may not be the same in each instance.
What does this unfettered right of Customs to inspect our electronic devices mean when we travel? Almost every computer has at least some business proprietary information stored on it. What happens to that information if it falls into the Government’s hands? The answer is no one really knows because so far, at least, the published decision have all involved criminal behavior.
So, what are travelers to do? First, remember, it’s not just your laptop. Any electronic device you carry with you is subject to inspection, such as cell phones, PDAs, and iPods. So, here are some tips –
1) Only take what you really need, both in the way of devices and in the way of data. Any number of law firms and companies are requiring their employees to either leave all such devices home or, at least, limit the data they take with them to that minimally needed on the devices with which they travel.
2) Make sure that whatever is on your devices you have backed-up on a separate media which is not with you.
3) Think long and hard about the data you have on your electronic device. If the only place you have your personal finances is on your laptop, it is the wrong computer to take with you. Where do you store your user names and passwords? What about your address book?
4) Assume that whatever information comes into Customs’ possession, should your device be detained, will end up in a database and if there is a way to do so, that information will be used against you, which may mean it will be used to validate what you are filing with the Government in other contexts, e.g. your taxes or entries.
5) If you do get stopped, make sure to be polite and reasonably cooperative, but do not let Customs over play its hand. You are entitled to ask for the badge number of the Customs official conducting the inspection/interrogation, especially if you think that person is out of line.
6) You are also within your rights to insist a supervisor become involved if you think the individual inspector has acted inappropriately. Of course, you only want to go this route if you are absolutely sure the inspector is being unnecessarily rude or unprofessional; yes, some of that is an investigatory technique. Just because you do not like the questions or think the Customs official is asking too many prying questions is not a good reason to ask for a supervisor. When that supervisor arrives, you must be able to objectively articulate, as calmly and coolly as possible, why the inspector was out of line and what you want done.
7) Keep in mind that if you insist on getting a supervisor involved, there are subtle ways in which Customs can make you pay, such as making you sit and wait for a long period of time, so be patient, be polite, make sure you can prove the devices are yours and they are "clean," and above all, make sure all your declarations to Customs are complete and accurate.
8) Think also about IT solutions, such as partitioning of drives, disabling USB ports, password protections, encryption, etc. Also make sure to clean your laptop when it is returned to make sure there is no unexpected spyware on it.
DHS has said Customs interdicts and ICE investigates so any reference above to Customs also includes the ICE agent. Keep in mind ICE is the criminal investigatory arm of DHS.
On August 25, 2009, DHS issued a Privacy Impact Assessment. A complete copy can be found at
If you have been stopped by Customs and had your luggage searched once, the odds are it is probably nothing more than a routine action. However, if you have your luggage and/or electronic devices searched and something is found, you can bet that for a while, each time thereafter you come in to the country, Customs will search everything you have with you, including your electronic devices, so better safe than sorry!
For more information, contact Susan Kohn Ross at
www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_laptop.pdf. It is helpful to us as attorneys in the sense that it specifically states if the contents of an electronic device contains attorney-client or other privileged data, before it may be inspected, CBP must contact the local Associate/Assistant Chief Counsel’s office or the U.S. Attorney. ICE must contact the local Chief Counsel’s office of the U.S. Attorney. skr@msk.com or 310.312.3206.
