Post details: Update: Border searches of laptops and electronic media

08/30/09

Permalink 11:45:27 pm, by fourth, 465 words, 206 views   English (US)
Categories: General

Update: Border searches of laptops and electronic media

On Juris's PaperChase is DHS announces increased oversight for US border laptop searches about explanations from Customs and Border Protection had directives issued for searches of laptop and electronic media. Also recently released is a Privacy Impact Statement.

I posted this comment tonight about the current goings on: Laptop searches at the US border implicate legitimate Fourth Amendment concerns. CBP thus far seems to have limited its laptop searches to child pornography, and then with reasonable suspicion, but what about the future:

CBP is searching laptop computers, a least in the litigated cases that I have seen, only for child pornography. And, they at least appear to be limiting these searches to those whom they have reasonable suspicion to believe are potentially transporting child pornography into the country. But, what happens when these searches begin to occur based on political speech, because one opposed the government position that happens to disagree with the opinion of the Customs agent making the decision (“the discretion of the officer in the field”)?

All the case law to this point is clear that reasonable suspicion is not required for a laptop search. No case has held that it is, and I don’t think that any will. That should not be surprising considering the Supreme Court held in 2004 in United States v. Flores-Montano that the reasonable suspicion requirement is limited to searches of the person and not personal belongings, and in 1971 that pictures and motion pictures could be examined at customs in United States v. Thirty-Seven Photographs. Thirty-Seven Photographs predated the widespread use of truly portable laptop computers by more than a decade.

Can the reasonable suspicion standard of border search law of searches of the person be readily imported into computer searches? Not likely. United States v. Montoya De Hernandez from 1985 left open the question whether reasonable suspicion was required for intensive border searches of the person, including strip and body cavity searches (n. 4: “It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.”).

The technology did not exist until the last four years, but what about backscatter technology that permits a virtual strip search at the border? [posted here & here] Virtually all persons subjected to it have no idea that it shows what one looks like under his or her clothes. It is not a mere x-ray. Should something that intrusive require reasonable suspicion? It doesn’t right now at the airports that use it for standard airport security. At least not yet because nobody has litigated yet that I am aware of. That will be an interesting case, because it should.

[posted 8/31]

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