US judge dismisses challenge to suspicionless laptop searches at the border


Since 2008, I’ve been writing about the random inspection and confiscation program of any traveler’s electronic devices by US Customs and Border Protection (CBP) upon entering the US while still at the border. US citizenship offers no immunity from the CBP program.

Since “9/11,” CBP agents have been searching and seizing laptops, digital cameras, cellphones and other electronic devices at the border without warrants, probable cause or even reasonable suspicion. CBP agents have been subjecting these devices to extensive forensic analysis.

In 2006, the US Court of Appeals, Ninth Circuit, in the case United States of America v. Stuart Romm, affirmed the power of CBP to search, seize and do extensive analysis of travelers’ electronic devices “without probable cause or a warrant under the border search doctrine.”

The border search doctrine is an exception to the Fourth Amendment’s requirement for a warrant or probable cause at the international border of the US in order to balance the interests of the country against the rights of the entrants to the US. As noted by the Ninth Circuit in their 2006 decision, “…searches made at the border are reasonable simply by virtue of the fact that they occur at the border.”

Like other business persons, photographers, journalists and even many leisure travelers, I use many electronic devices (laptop, iPad, iPhone, iPod, cameras, and external hard drives) while away internationally. While I haven’t yet had my electronic devices inspected or confiscated upon entering the US, far too many international travelers have, including devices needed for work which were owned by their employers, as I’ve noted in past articles.

In the 21st century, many keep a record of the most intimate details of their lives on their laptops, tablets and smartphones. Business people, photographers and journalists often store important and critical data, including their travel work product, much of it confidential, on these devices until they return to their office.

For business travelers and vacationers alike, laptops, tablets and smartphones have become de-facto electronic diaries. You can’t get more private and personal than that. The intrusion of the government into a person’s private life as stored on their electronic devices by rummaging forensically in them is tantamount to a home invasion, in my opinion.

In a surprise ruling in March, 2013, the US Court of Appeals, Ninth Circuit, in the case of the United States v. Howard Wesley Cotterman, reversed many of its earlier decisions by ruling the Fourth Amendment applies at the border, and that CBP agents need to recognize there is an expectation of privacy and can’t search electronic devices without a reason. They also noted that the act of merely encrypting a file with a password does not in and of itself create suspicion.

The court made a ground breaking statement in their ruling.

“Even at the border, we have rejected an ‘anything goes’ approach.”

Unfortunately, Judge Edward Korman of the US District Court for the Eastern District of New York in Brooklyn, ruling on the suit Abidor v. Napolitano by dismissing it on December 31, 2013, didn’t agree with the Ninth Circuit. In addition to Mr. Abidor, the ACLU filed the suit on behalf of David House, the National Press Photographers Association¹, and the National Association of Criminal Defense Lawyers.

Judge Korman made two major observations in dismissing the suit in which I believe he erred and the result of these, I believe, clearly differed with the opinion of the Court of Appeals, Ninth Circuit.

Border searches of electronic devices are rare — While this is true — for example, only about 6,600 people had devices confiscated from October, 2008 to June, 2010 — I believe Judge Korman missed the point. Although the government usually applies the rules of the First and Fourth Amendments, it doesn’t justify ever ignoring them.

Many of the border searches of electronic devices were prompted by reasonable suspicion — No one has denied this, but in my opinion, having suspicion for some searches doesn’t justify an inspection and confiscation program which doesn’t require that suspicion for all searches.

I have no doubt this recent ruling will be appealed. With judges in different federal judicial districts disagreeing, eventually the US Supreme Court will have to rule for the nation on the extent to which the “border search doctrine” can be applied to the search and seizure of electronic devices at the US border.

For now, CBP will continue its random electronic gear search and seizure program at the border. So, as before, I offer this advice to travelers arriving in the US from an international trip:

1. Store as little personal, professional, and business data as possible directly on electronic devices you use while traveling abroad.

2. Store as much necessary data as possible on the “cloud,” to access while traveling. That way, the government won’t be privy to the information, as it won’t be stored on your devices.

3. Use remote access software to connect your tablet, smartphone or laptop to your home and/or office computer to view and answer your email, rather than directly on those devices. That will keep your personal and business email messages and attachments out of the CBP reach.

4. Delete all history, cookies, temporary files, and sensitive data from your electronic devices securely, like you would when recycling an old computer, before entering/returning to the US. Never store passwords on electronic devices with which you travel.

¹ The column’s author, Ned Levi, is a member of the National Press Photographers Association.

  • Vector

    Once again the point is elections have consequences.

    Know who you are voting for and make sure they have your best interests.

    Ignore the Main Stream Media in their opinions as well as ‘pundits.’

    What I am saying is truly look at the candidate, not the flowery speech that comes out of their mouths.
    What have they done, what is their past like?

    Don’t get caught up in the “if I vote for this candidate, I will be part of history” view.

    Again the MSM does not have your interest at heart, they have an agenda too, and want to be in the power loop.

    This goes for both sides of the political spectrum.

  • VELS14

    Elections do have consequences, but in this case, there has been no impact from any election since the program was started under the Bush Administration, nor was there going to be. The people running Homeland Security, and CBP under Bush and Obama have agreed that random searches of electronic equipment is essential to keep the American people safe. As to the elections of Obama vs. McCain and Romney nothing was going to happen even if Obama wasn’t elected as both members of the GOP have also publicly agreed with this policy. And in the Senate and the House, this issue is so far down the ladder of importance it will not be addressed anytime soon.

    As to main stream media and pundits, they haven’t particularly said anything about this issue in editorial comment.

    The NY Times for example, while offering a news article about the recent decision made by Judge Korman in the district in which the Times is located steered clear of putting out an opinion. It doesn’t seem as though it’s much of an issue for most in the news media.

    While I agree that elections have consequences which means you have to pay attention to what the candidates believe and what their past records say, I don’t agree about ignoring Main Street Media, as you call them, or Pundits. Many are quite good, and come to their comments and positions after careful thought. That doesn’t mean you have to agree with them, of course, if one ignores them as a group that shows to me a lack of willingness to be open to listening to many points of view in an effort to come to one’s own position. Moreover, I see lots of Side Street Media which appeals to many which I think is worthless.

  • Lisa Simeone

    “Many of the border searches of electronic devices were prompted by reasonable suspicion — No one has denied this . . . .”

    I deny it. So do thousands of others who fight for civil liberties.

    I’ll repost the comment I left last week when your colleague Stephanus Surjaputra wrote about this ruling:

    Face it; we live in a police state. You have no rights at the border. None. This has been true long before electronic gadgets were invented. CBP has complete and unfettered authority. They do what they want, when they want, to whom they want. And it can be abusive.

    The ACLU published a map showing that most of the U.S. population lives in a “Constitution-free zone”:

  • Lisa Simeone

    Agreed that the MSM don’t have the country’s best interests at heart and agreed that everything you’ve written goes for “both sides of the political spectrum.”

    Disagree that voting matters anymore in this country. Because the proverbial spectrum is basically one color. The major political parties are two sides of the same coin. They’re equally beholden to powerful interests. They’re equally beholden to their corporate masters. They differ in only the most minor ways, and LEV14 is right that neither of them gives a sh1t about civil liberties. With rare exceptions, the Dems and Repubs kowtow to authority and give carte blanche to so-called protectors of the “homeland” (vile word).

    As long as their personal computers aren’t being searched, they couldn’t care less. Rights of their fellow citizens be damned.