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Laptop Subject To Warrentless Search

Posted by Bill on April 22, 2008

  A federal appeals court, the 9th Circuit Court of Appeals, ruled that a search of a laptop computer’s hard drive and contents is acceptable under the fourth amendment of the US Constitution even if special agents with the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) had no reasonable suspicion of a crime or criminal activity. 

The unlucky defendant in this case arrived at LA International Airport after a twenty-four hour flight from the Philippines.  A Customs and Border Patrol (CBP) officer saw the defendant standing in line and asked him where he traveled and the purpose of his travel.  The guy told CBP that he had been in the Philippines for three weeks visiting friends.  CBP found a laptop, flash drive, separate hard drives and several compact discs in his luggage.  Unfortunately for this guy, CBP booted the laptop and found a couple of files on the desktop labeled “Kodak Pictures” and “Kodak Memories.”  Being curious, the CBP officer opened the files finding images of what they believed was child pornography.

ICE agents were called in and they questioned the guy and examined his laptop for several hours.  ICE seized the laptop and equipment, but let the guy go on to his destination.  Two weeks later, he was indicted by a federal grand jury for various interstate child pornography charges.

The defendant argued reasonable suspicion was required to search his laptop at the border because it is distinguishable from other containers of documents based on its ability to store greater amounts of information and “its unique role in modern life.”   He argued that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” and the “human mind.” Arnold’s analogy of a laptop to a home is based on his conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He argues that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

This was a great legal argument, but to no avail.  The Ninth Circuit did not buy it and correctly set out the law of border searches.  Almost anything goes except some bodily instrusions, but not all.

The lesson learned is “do not break the law” and more importantly know that your laptop or other storage devices are subject to search when coming into the US from overseas.  In fact, the courts have ruled that you must turn over any password to allow a search.

Read the opinion Click Here

 Read a summary of the story and case Here at Law.com

Bill Lowrance

President PIAVA

Information Insights Inc., McLean, VA

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