“Your Passport and Your Laptop, Please”: A Possible Limit on the Government’s Authority to Search at the Border?

Imagine you are at the airport, either about to get on or just having gotten off an international flight. While you are minding your own business, a Customs and Border Patrol agent comes up to you and demands to look inside the laptop bag over your shoulder. Perhaps this request is more or less random. Maybe the government suspects you of criminal activity in general. Or you might have been targeted based on your political activity. In any case, the agent does not have reasonable suspicion that you have contraband such as child pornography on your laptop. Nonetheless, the agent compels you to turn on your laptop, allow the agent to poke around your files, and when you refuse to decrypt your password-protected private data, the agent seizes your computer and sends it to a cyber-specialist for forensic analysis. You only get the laptop back seven weeks later with help from the ACLU. Have your Fourth Amendment rights been violated?

Until recently, the answer was fairly uniformly “no.” The Supreme Court has held that the government has wide authority and discretion to search just about anyone and anything at the border based on its interests in securing the border and national security. The relaxed restrictions on government action have led some on both the right and the left to brand the area around the border a “Constitution-Free Zone.” (In fact, the government has established border checkpoints 100 miles from the border or even farther, asserting the authority to stop and search people arbitrarily, even far from Canada or Mexico.) For example, the government does not need to give any justification for holding an individual at the border for an hour or two while a mechanic removes the gas tank of his car to search for drugs.

The government’s border search authority is not totally unlimited, but was thought to be nearly so: in one case, a customs agent suspected that a woman arriving on a flight from Colombia was smuggling drugs in, as the Supreme Court put it, her “alimentary canal.” The woman refused an X-ray, and therefore customs agents held her incommunicado for nearly 24 hours waiting for her to relieve herself in a wastebasket, in front of two agents. The Supreme Court held that this unbelievably intrusive detention and search was justified as long as federal agents had a “reasonable suspicion” of criminal activity, the same level of suspicion required for police to pull over a driver for a traffic violation or stop and frisk someone on the street. But even this low level of proof was restricted to the most significant intrusions on personal liberty or the most destructive means of searching.

Accordingly, it is no surprise that, until the last few years, courts permitted searches of computers and other digital materials at the border without any specific justification. In 2012, a federal judge in Boston held that the government could seize an individual’s electronic devices at the border, copy the information on them, and conduct a forensic search of the data without any suspicion. In that case, the individual claimed that he had been targeted for his vocal and active support of Chelsea Manning, who leaked sensitive government information to whistleblower website WikiLeaks. The court ruled that a computer is a container like any other, and is subject to search at the border like any other.

More recently, however, some courts have started to trend in the other direction. First, in 2013, the Ninth Circuit Court of Appeals held, in a divided decision in United States v. Cotterman, that laptops and digital storage devices are different due to the sheer volume of private and personal information that could be contained even in a tiny SD card or flash drive. The Ninth Circuit had previously permitted a suspicionless computer search at the border, but this time it distinguished that “quick look” (a border agent examining the computer on site for a few hours is considered “quick” where the border is concerned) from the complex forensic examination whereby government agents sent the computer hundreds of miles away, made a digital mirror image of the data, and closely searched the data for several days. A forensic examination, the Ninth Circuit held, would require reasonable suspicion (although, in Cotterman, the court held that the agents had reasonable suspicion due to information that Cotterman was a sex offender who may have been engaged in sex tourism in Mexico).

Similarly, a few days ago, a district court in Washington, DC, in United States v. Kim, suppressed key evidence obtained through a border search in a criminal case for illegally selling items to Iran that could be used for nuclear reactors. Federal agents who suspected Kim of violating sanctions against Iran, rather than obtaining enough evidence for a search warrant through further investigation, merely waited until the next time he was going to travel internationally and then had a border agent seize his laptop at the airport in Los Angeles. The defendant was permitted to continue on his flight, but federal agents sent his laptop to a facility in San Diego for extensive forensic analysis. The court relied on Cotterman as well as the Supreme Court’s 2014 decision in Riley v. California, which held that cell phones cannot be searched without a warrant whenever someone is arrested, explaining: “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse…. Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The court in Kim similarly found it unreasonable for border agents to be able to dig arbitrarily through the vast and varied amounts of information on a computer at their leisure. Because the court held that the government needed, and lacked, reasonable suspicion that Kim was engaged in criminal activity when his laptop was seized, the government is precluded from using incriminating emails and other evidence obtained.

If other courts adopt the reasoning of Cotterman and Kim, lawyers, journalists, and others with confidential or private information will be able to rest a bit easier on their international flights. They will still be subject to search at the border, but they can have some comfort that their data will not be totally open to snooping government inspectors. (Just in case, though, encryption is not a bad idea.)

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