Laptops and border searches

For years and years and years (and years . . . ), Customs Officers in the US and elsewhere have inspected "luggage" as it came into a country. The purpose is to identify goods being imported (i) on which a duty is owed or (ii) that represent contraband or other items the importantion of which is not allowed.

In the US, therefore, Customs Officers have the right to open luggage and inspect its contents essentially as they wish. The first Congress gave them this authority back in 1789, and it has been renewed ever since.

Customs Officers' authority to routinely search luggage coming into the United States represents an exception to the usual requirements of the Fourth Amendment, which governs searches such as these. The Fourth Amendment's default position is that law enforcement agents (such as Customs Officers) must obtain a warrant based on probable cause and issued by a magistrate before they can search private property, such as suitcases and other types of "luggage." But there is a long-standing exception, known as the "border search exception," which lets Customs Officers search luggage without obtaining a warrant or having probable cause to believe they will find dutiable goods or contraband in a particular item of luggage. The Supreme Court has upheld this exception on several occasions, so its applicability to normal luggage is without question.

In the last few years, the question has arisen as to whether this exception also applies to a laptop computer being brought into the country (or taken out). Historically, the primary focus of the border search exception has been "luggage" (though it has been extended, on occasion, to other items, such as vehicles crossing territorial borders). We think of "luggage" as suitcases, duffel bags, briefcases, diaper bags, and similar containers for a traveler's belongings.

A laptop is certainly not the kind of container that comes to mind when we think of "luggage," but it is a kind of container. U.S. courts have analogized laptops to containters for the purposes of applying the Fourth Amendment's restrictions on government searches and seizures in other contexts. The premise is that a laptop is a "container" for intangible property -- for data.

Since it is becoming increasingly common for people to bring laptops into (and out of) the U.S., it is not surprising that the question has arisen as to whether Customs Officers can search laptops just as they would any other type of "luggage."

The answer, so far, is "yes."

A number of federal district courts and at least two federal circuit courts of appeals have held that the routine border search exception does apply to laptops. As the District Court for the Southern District of New York explained in United States v. Irving, 2003 WL 22127913 (2003),

"courts have compared personal notebook computers to closed containers for the purposes of the Fourth Amendment analysis. Inspection of the contents of closed containers comes within the scope of a routine border search and is permissible even in the absence of . . . probable cause. Indeed, `[t]he opening of luggage, itself a closed container, is the paradigmatic routine border search.’. . . [A]ny other decision effectively would allow individuals to render graphic contraband, such as child pornography, largely immune to border search simply by scanning images onto a computer disk before arriving at the border.
"

This court and other federal courts have, therefore, applied the routine border search exception to uphold Customs Officers' searching through the files on a laptop's hard drive to determine if the laptop contains contraband such as child pornography.

And while these searches usually involve laptops that are coming into the United States, the Fifth Circuit Court of Appeals has held that the exception also applies to searches of laptops that are leaving the country. In United States v. Roberts, 274 F.3d 1007 (5th Cir. 2001), the Fifth Circuit upheld the search of a laptop and diskettes owned by a traveler who was preparing to leave the United States.

In the Roberts case, the district court upheld the search based, in part, on its conclusion that the routine border search exception applies with equal force to searches of property leaving the country. The district court also upheld the search under a "higher" standard, the non-routine border search exception, which lets Customs Officers search luggage (and laptops, apparently) when they have "reasonable suspicion" (a lower level probable cause) to believe contraband is in particular luggage. In the Roberts case, the Customs Officers had been informed that Roberts would be leaving the country with child pornography on his laptop and on diskettes he would be carrying with him. When the case got to the Fifth Circuit, they took the conservative approach and affirmed the district court based on the applicability of the non-routine search exception; they did not reach the issue of the applicability of the routine search exception. It is likely, however, that the Fifth Circuit would have upheld its applicability in this particular context.

These case and others, including one decided in January, 2006, make it clear that U.S. Customs Officers are searching laptops pursuant to the routine border seach exception. This means they can search a laptop without probable cause even reasonable suspicion to believe it contains contraband or other evidence of a crime. They can, instead, search a laptop in the same way and for the same reasons they elect to search suitcases or other "luggage."

On the one hand, applying the border search exception to laptops is eminently reasonable, as they are, in fact, a type of "container."

On the other hand, applying the exception to laptops seems . . . extreme, for lack of a better word. While laptops are certainly a type of "container," they are, I would argue, a unique type of container . . . one that holds information of a quantity and complexity that already vastly exceeds what could be crammed into a suitcase or any other kind of conventional luggage. And their capacity to store information of all types -- personal, business, whatever -- will only continue to increase, essentially exponentially.

There is also another issue that will arise, though it has apparently has not arisen so far. What happens if the laptop's hard drive is encrypted? Can the Customs Officers require the owner of the laptop to give them the encryption key needed to access the contents of the laptop? Can the owner refuse to do so . . . and abandon the trip?

If someone can claim that handing over the encryption key would be testimony that incriminates them in the commission of a crime, they might be able to invoke the Fifth Amendment and refuse to do so, in the U.S. anyway. In some countries, it is clear there is no right to refuse to provide an encyrption key when properly requested to do so by law enforcement officers.