Mark A Ivener, A Law Corporation

Laptops, Storage Devices May Undergo Scrutiny At Border

The Ninth Circuit Court of Appeals held on April 21, 2008 (U.S. v. Arnold) that the federal government has discretion to search a laptop or other personal electronic storage device at the border. The court concluded that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border,” noting that “Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.”

In the brief for amici curiae, the Association of Corporate Travel Executives (ACTE) and the Electronic Frontier Foundation (EFF) noted that although laptop searches by border agents have raised increasing concerns during the last year, they still come as a surprise to most travelers. The brief notes that in an October 2006 survey of business travel managers, ACTE found that only six percent of the managers knew that border agents randomly search, seize, and copy the contents of travelers’ computers, and only one percent had received reports from travelers that their laptops had been seized by U.S. border officials. The survey results showed that “even very experienced business travelers are completely surprised to learn that the U.S. government conducts these searches and seizures randomly,” the brief notes.

ACTE and EFF noted the “wide ranging implications of the government’s arguments.” Indeed, they said, under the government’s reasoning, border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry, and other electronic device carried across our national borders by every traveler, American or foreign. “The government could then store and search all of this information without justification and without oversight from the courts.” The Fourth Amendment simply does not apply. “If accepted, the government’s argument will establish an end run around the Constitution’s prohibition against unreasonable searches and seizures.”

While this issue remains unresolved, travelers handling sensitive information for corporations or clients may wish to work remotely online using a leased computer, or e-mail information, rather than storing it on a laptop and carrying it across the border. Even a BlackBerry could pose a serious breach of privacy if carried during international travel.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.