Prof. Levenson and student publish op-ed, "Border Laptop Searches"

Professor Laurie Levenson and student Diana Cho '15 published the following op-ed in the Thursday, June 13, 2013 edition of the Los Angeles Daily Journal.

Travelers beware! As the summer travel season begins, the courts continue to debate whether laptops at the border may be routinely searched without a warrant or reasonable suspicion.

In 2008, the 9th U.S. Circuit Court of Appeals decided in United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008), cert. denied, 555 U.S. 1176 (2009), that officials may search a person’s laptop computer without reasonable suspicion. Michael Arnold was stopped by customs officials when he arrived at Los Angeles International Airport after a flight from the Philippines. The officials ordered Arnold to boot up his computer to be inspected. On it, the officers found folders entitled “Kodak Pictures” and “Kodak Memories.” Inside those folders, they found child pornography.

Arnold challenged the search, claiming that while routine border searches may be conducted without any suspicion, the search of a laptop is so intrusive that it should require reasonable suspicion. The district court agreed, but a 9th Circuit panel reversed. It held that the search of a laptop was no different than the search of other closed containers at the border and no particularized suspicion is required for those searches. As the Supreme Court stated in United States v. Flores-Montano, 541 U.S. 149, 153 (2004): “It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial territory.” This strong government interest outweighs any privacy interests the traveler may have. So long as the officers do not cause significant damage to the defendant’s laptop, the search is permitted without any suspicion at all.

The court refused to draw distinctions between containers such as luggage that carry clothing and a container like a laptop that holds matters of greater significance. Arnold argued that a laptop is almost like a home because it allows the traveler to take his or her most significant files with him. The court was not persuaded. Even though many of us rely heavily on our hand-held devices, they are not floating homes. They are containers that can be searched.

Since Arnold, courts have generally allowed suspicionless border searches of laptops, although they continue to struggle with whether inspections of electronic devices should be treated differently. For example, in United States v. Singh, 295 Fed. App’x. 190, 190 (9th Cir. 2008), the court rejected the defendant’s challenge to the border search of his laptop, holding that the issue was squarely foreclosed by the Arnold decision. However, the panel also opined that even if reasonable suspicion is required, the officers had sufficient suspicion for their search. See also United States v. Bunty, 617 F. Supp. 2d 359, 364-65 (E.D. Pa. 2008) (finding reasonable suspicion as alternative grounds for upholding search).

Some courts have sought to distinguish and limit Arnold. For example, in House v. Napolitano, 2012 U.S. Dist. LEXIS 42297, at *29-30 (D. Mass. Mar. 28, 2012), David House sued the head of the Department of Homeland Security, alleging that federal agents’ search of his electronic devices at the border and prolonged seizure of those items for 49 days without reasonable suspicion violated his Fourth Amendment rights. Evidently, House was not very popular with government officials. He was a founding member of the Bradley Manning Support Network, a grassroots group dedicated to helping accused whistleblower Private Bradley Manning, who was accused of releasing classified information without authorization in the famed WikiLeaks case.

The government moved to dismiss the suit, alleging that there had been no Fourth Amendment violations by border officials seizing House’s computer, USB storage device, video camera, and cell phone when he returned to Chicago International Airport from a vacation in Mexico. When House declined to give the officials his passwords to the devices, Immigration and Customs Enforcement (ICE) officials told him that he was free to go, returned his cell phone, but kept the other items that were seized. They indicated that they would need to hold on to them for a week, but they ended up not returning them for another six weeks when House made a written demand. House sued to enjoin the practice.

Like the Arnold court, Judge Denise Casper held that the initial search of the electronic devices did not violate the Fourth Amendment. She found that the search was not so intrusive as to require any particularized suspicion. While laptops may contain personal information, they are not the same as strip searches or other physical intrusions that require reasonable suspicion. “It is the level of intrusiveness of the search that determines whether the search is routine, not the nature of the device or container to be searched.” Id. at *24, quoting United States v. Giberson, 527 F.3d 882, 888 (9th Cir. 2008).

However, the court agreed that House may have a plausible claim that his devices were improperly seized and held for an unreasonably long period. ICE policy provides that searches of electronic devices should be completed within 30 calendar days. While the government could argue that a longer detention was reasonable because House did not provide his access passwords, those facts were yet to be established and summary judgment was improper.

After House, the 9th Circuit issued an en banc decision that opened the door to challenge some searches of electronic devices even after Arnold. This spring, the court issued its decision in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc). In her opinion, Judge M. Margaret McKeown laid out exactly why the issue of border searches is so important: “Every day more than a million people cross American borders. ... As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information.” Id. at 956. They also can carry child pornography.

The court did not backtrack on its initial decision in Arnold that border officials can conduct an initial search of electronic devices at borders. This may include asking the traveler to turn on the devices and open image files. However, “[t]his does not mean … that at the border ‘anything goes.’” Id. at 960, quoting United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc). When border officials go to the next step of conducting a forensic examination of the device, they need reasonable suspicion.

“[T]he uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.” Id. at 966. A forensic search of the device is, in the court’s words, essentially “a computer strip search.” Id. As such, this next step may not be taken unless the government officials can meet the minimum showing of why they suspect the devices contain evidence of criminal activity.

Thus, law enforcement may peek at travelers’ electronic devices, but they cannot become too familiar with them without reasonable suspicion. Reasonable suspicion is such a low standard that it is not usually difficult for officials to meet. See United States v. Young, 2013 U.S. Dist. LEXIS 33496, at *6 (W.D.N.Y. Jan. 16, 2013) (finding reasonable suspicion for search of cellular phone during border search); United States v. Stewart, 715 F. Supp. 2d 750, 755 (E.D. Mich. 2010) (finding reasonable suspicion for expanded border search of laptop); United States v. Rogozin, 2010 U.S. Dist. LEXIS 121162, at *9 (W.D.N.Y. Nov. 16, 2010) (finding reasonable suspicion for examination of laptop during secondary inspection). Moreover, there are still many judges, including the dissenters in Cotterman, who believe that forensic examinations should be automatically allowed to avoid hamstringing government efforts to protect our borders. Cotterman, 709 F.3d at 971.

New technology continues to pose challenges for application of the Fourth Amendment. The Supreme Court has not yet decided whether use of wireless GPS devices constitutes a search. Likewise, it may soon confront whether border searches of electronic devices are to be treated the same as looking in passengers’ suitcases. Until it does decide, one thing remains clear. Travelers beware.