Bordering on unconstitutional

You attend a conference in Toronto or just take in a Blue Jays game.

On your return, the customs official looks at your passport and directs you to the side for an inspection. During the course of the inspection you are asked to turn on your laptop and give the official all of the passwords to enable him to examine its contents, in a backroom.

In the laptop you store communications with clients, some of whom are suing the government and some of whom are targets of investigations; financial and medical records, love letters and family photos. You have no desire to share such confidential and personal information with the government.

What do you do? According to the Department of Homeland Security, you have no choice. That is, if you want to reenter the country, you must do as directed.

A year ago the department issued a policy authorizing an agent at the border to "examine electronic devices" and "review and analyze the information" contained therein, "with or without individualized suspicion" that a traveler has committed or will commit a crime or that the device or its contents are connected to a crime. Electronic devices include computers, cell phones, disks, cameras, and the like.

The policy permits the agent to conduct the search outside of the presence of the traveler. The agent may keep the device indefinitely. He may copy the information found and share it with other government agencies. The nature of the information is irrelevant.

In a recent 20-month period, the government searched the devices of 6,600 travelers, nearly half of whom were citizens.

Whoa, you say, does the Fourth Amendment not require the government to obtain a warrant to search a laptop or at least have reasonable suspicion of wrongdoing by the traveler?

Probably not, at the border.

Searches of electronic devices may be a new development, but the government's authority to conduct searches at the border and international airports is not: "[F]rom before the adoption of the Fourth Amendment" border searches "have been considered 'reasonable' by the single fact that the person or item in question had entered into the country from outside." U.S. v. Ramsay, 431 U.S. 606, 619 (1977).

The government has the inherent authority as sovereign to protect the territory of the nation. Routine searches of people and property at the border are not like searches of homes, people and property elsewhere, and do not require a warrant, probable cause or reasonable suspicion. In the lexicon of Fourth Amendment case law, people have a greatly diminished expectation of privacy at the border. U.S. v. Montoya de Hernandez, 478 U.S. 531 (1985).

In dicta the Supreme Court has suggested a border search may become unreasonable "because of the particularly offensive manner [in which] it is carried out." U.S. v. Flores-Montano, 541 U.S. 149, 154-55 (2004).

The Supreme Court has not ruled on the constitutionality of laptop searches at the border. Two circuit courts have, and both held for the government. They did not see any difference between the search of a laptop and the search of a suitcase, both of which can be conducted without any suspicion of wrongdoing. U.S. v. Ickes, 393 F.3d 501 (Fourth Cir. 2005); U.S. v. Arnold, 523 F.3d 941 (Ninth Cir. 2008).

The Arnold court rejected the defendant's argument that a search of a laptop was "particularly offensive" because of the amount of the data capable of being stored on the machine.

Both courts refused to block the searches on the grounds that the laptops may contain expressive material protected by the First Amendment. To hold otherwise, in their opinion, would favor electronic formats over paper formats of the same expression and require border agents to make quick decisions on what might be protected and thus not to be examined.

Ickes and Arnold's laptops contained child pornography, the importation of which is a federal crime. They were appealing their convictions.

The ACLU believes the government must have reasonable suspicion before looking through the contents of travelers' electronic devices. Two weeks ago in the Eastern District of New York it commenced a new lawsuit on the subject, Abidor v. Napolitano, 2010-cv-04059 (E.D.N.Y.).

The plaintiffs are a citizen whose laptop was taken at the Canadian border and searched, a defense attorneys' association whose members travel abroad for their clients and a photographers' association whose members travel on business throughout the world.

The ACLU hopes that a more sympathetic group of challengers will help the Second Circuit to rule against the government. Then we will have a split among the circuits, which should cause the Supreme Court to take up the issue.

Unchecked government fishing expeditions into constitutionally protected materials interfere with our jobs and personal lives and do not make us safer.

I am one traveler who hopes the ACLU prevails.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Thu, Sep 23, 2010