Sep 012009
 September 1, 2009  Posted by  Featured News, Govt, Surveillance, U.S.

As a follow-up to the position of the Department of Homeland Security on searching laptops at the border (reported here last week), Jaikumar Vijayan of Computerworld reports:

The Department of Homeland Security’s Privacy Office has approved the controversial searches, copying and retention of laptops, PDAs, and other digital devices without cause at U.S. borders.

Travelers could soon start seeing notices from the Privacy Office, which last week released a report supporting the right of customs agents to conduct such searches.

The 51-page Privacy Impact Assessment also supported the right of U.S. Immigration and Customs Enforcement agents to copy, download, retain or seize any content from these devices, or the devices themselves, without assigning any specific reason for doing so.

Read more on Computerworld.

Elsewhere, Jurist provides an interesting commentary on the legal underpinnings of DHS’s position :

John Wesley Hall, Jr. [Former President, National Association of Criminal Defense Lawyers]: “This fiscal year, through August 11, 2009, US Customs and Border Protection (CBP) tells us that there were about 1,000 laptop computer searches, only 46 of which were in-depth. This out of 221 million border crossings. It simply is not possible for CBP to widely search laptop computers at the border. Too many people are lined up coming in to search everybody intensively, let alone their computers and electronic media too.

CBP is searching laptop computers, a least in the litigated cases that I have seen, only for child pornography. And they at least appear to be limiting these searches to those whom they have reasonable suspicion to believe are potentially transporting child pornography into the country so as to target their resources. But what happens when these searches begin to occur based on political speech because one opposes a government position or happens to disagree with the opinion of the customs agent making the decision (“the discretion of the officer in the field”)?

All the case law to this point is clear that reasonable suspicion is not required for a laptop search. No case has held that it is, and I don’t think that any will. That should not be surprising considering the Supreme Court held in 2004 in United States v. Flores-Montano that the reasonable suspicion requirement is limited to searches of the person and not personal belongings, and in 1971 that pictures and motion pictures could be examined at customs in United States v. Thirty-Seven Photographs. Thirty-Seven Photographs predated the widespread use of truly portable laptop computers by more than a decade.

Read more on Jurist.

Updated: I contacted John Wesley Hall, Jr., an expert on Fourth Amendment law, to ask him about the Fourth Amendment basis for not just searching, but copying, the contents of devices, as there has been some talk among privacy advocates and attorneys about attorney-client privilege or other confidential materials that might be copied or put at risk of a breach. John’s response:

The right to search would presumably include the right to copy what is found for evidentiary use.

If it was copied or taken and never used in a criminal prosecution, it would be subject to return under F.R.Crim.P. 41(g) if it was noncontraband.

What about attorney-client privileged information? There has been some list serv traffic about this risk, which is a theoretical risk at best. CBP just does not have the time to search except for contraband. 221 M border crossings between 10/1/08 and 08/11/09 means it is impossible for them to do anything but a search that is likely to bear fruit; hence a virtual self-imposed reasonable suspicion standard, although the law does not require one.

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