Searching Laptops at US Borders and Airports

Anita Ramasastry believes that US government practice in searching laptop computers at borders and airports puts constitutional rights [of free speech and freedom from unreasonable search and seizure] in peril.

"This month, the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF), two civil liberties groups based in Northern California, filed a lawsuit under the Freedom of Information Act (FOIA) to force the government to disclose its policies on border searches, including its rules governing the seizure and copying of the contents of electronic devices. The two groups also want to find out the criteria the government uses to determine when border agents will ask travelers about their political beliefs, religious practices, and other First-Amendment-related activities.

Though the groups' initial FOIA request for relevant documents was made on October 31, 2007, they have yet to receive any documents - even though FOIA stipulates that a request for public information should receive a response within 20 days. Accordingly, they have filed suit to compel a response...

The ALC and EFF's position is that members of the public have a right to know when the government will search their laptops or other electronic devices and, when a search does occur, what types of data the government might, read, copy, or store...

My research indicates that no appellate court has yet addressed the question of whether "reasonable suspicion" is necessary for a laptop search. However, in United States v. Arnold, a California federal district court held that it is. The court reasoned that a search of travelers' files on a laptop is akin to a search of his or her memory, as laptops are "capable of storing thoughts." It wrote "[W]hile not physically intrusive as in the case of a strip or body cavity search, the search of one's private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person."

The government appealed, and the appeal was argued before the Ninth Circuit in October 2007. The Court has yet to issue a decision. Let's hope that when it does, the Ninth Circuit will affirm the district court's well-reasoned opinion, and require reasonable suspicion for laptop searches...

A search of a laptop is much more similar to the search of one's mind, than of one's suitcase. Commentators have pointed out that laptops and PDAS are much like diaries. They record intimate details of our lives, track months and years of our personal histories, list our friends, business associates, and clients, and reflect our opinions on topics ranging from the election to the stock market to the war in Iraq. Finally, their capacity is far great than that of a suitcase which, limited by its physical dimensions, contains a small inventory of items.

In some professions, moreover, a search of a laptop or PDA can pose special dangers. A lawyer's may contain attorney-client privileged information or attorney work product that is for lawyers' eyes only. A journalist's may contain contact information for confidential sources. A social worker's may have sensitive client files focused on personal case histories. A businessperson's may contain trade secrets or information about a future share offering that has not been announced."