When you fly home from an overseas trip, can officers from U.S. Customs and Border Protection (CBP) comb through your laptop computer in search of evidence that you’ve committed a crime? Wednesday, a Senate subcommittee held a hearing to consider that question. (Full disclosure: I was one of the witnesses.)
Before getting to the law of laptop searches, consider the policy. Why does CBP occasionally search travelers’ computers at the border? Because doing so is an effective way to detect child pornographers and terrorists. Here’s the key statistic: There have been eleven federal laptop decisions, and every single one of them has involved child pornography.
Stefan Irving is chillingly representative. Irving used to be the pediatrician for a school district in New York, but he was fired after a 1983 conviction for sexually abusing a seven-year old boy. In 1998, he flew back to the United States from vacation in Mexico. Customs officers searched his luggage and found children’s books and children’s drawings. They also discovered two computer disks. When they looked at the disks, they found numerous images of child pornography.
It turns out Irving was in Mexico to visit — these are the court’s words — “a guest house that served as a place where men from the United States could have sexual relations with Mexican boys.” Irving “preferred prepubescent boys, under the age of 11.”
Irving is now serving a 21-year prison sentence. Part of the reason he’s behind bars, and no longer preying on innocent children, is because of a computer search.
Laptop searches aren’t just about child exploitation. They’re also about terrorism. Convicted 9/11 conspirator Zacarias Moussaoui kept a wealth of data on his laptop, including information about crop-dusting aircraft and wind patterns.
More recently, in 2006, a laptop search at Minneapolis-St. Paul helped CBP detect a high-risk traveler. The man was carrying a manual on how to make improvised explosive devices, or IEDs — a weapon of choice for terrorists in Afghanistan and Iraq. Officers inspected his computer and found video clips of roadside bombs being used to kill soldiers and destroy vehicles. They also found a video on martyrdom.
So what does the Constitution have to say about laptop searches at the border? Not much, actually. Ordinarily the government has to establish probable cause and obtain a warrant from a judge before conducting a search. But the Fourth Amendment applies differently at the border. Here’s how the Supreme Court puts it: Routine border searches “are not subject to any requirement of reasonable suspicion, probable cause, or warrant.”
Consider a few more statistics. There have been eleven federal decisions testing the government’s laptop-search powers. Seven of the eleven hold that CBP can search with no particularized suspicion at all. Three courts punted. In those cases, the officers had reasonable suspicion so it wasn’t necessary to decide whether suspicionless searches were allowed. Other than a single California district court that was reversed on appeal, no court has held that CBP needs reasonable suspicion to search a laptop. No court has held that probable cause is required. And no court has held that customs must obtain a warrant.
My sense is the Supreme Court won’t disturb this lower-court consensus, for a simple reason: Technological neutrality.
The privacy protections we enjoy shouldn’t depend on whether we store our data in digital format or on paper. Border officials can search mail, address books, and photo albums with no suspicion at all. Why should the rule change when we keep our correspondence, contacts, and pictures on a laptop? The mere fact of computerization shouldn’t make a difference to the scope of our privacy rights.
While the Fourth Amendment doesn’t have much to say about laptop searches, it’s not the end of the conversation. Policymakers at the Department of Homeland Security should consider adopting a few safeguards above the constitutional floor.
For starters, CBP might shed some light on how it picks people for laptop searches. Are they selected randomly? Because of travel history? Tips from other government agencies? Observations about passenger demeanor? More transparency would help assure people whose laptops are searched that they were picked for legitimate law-enforcement reasons, and not on the basis of impermissible criteria like race or religion.
Also, CBP might adopt standards on what it does with data copied from laptops. If a search doesn’t uncover anything illegal, CBP would be hard pressed to justify keeping files from the passenger’s computer. For data it does keep, CBP should strictly enforce policies that punish employees who access or disclose it without authorization. Also, CBP should take special care to see that trade secrets and privileged correspondence are handled with all appropriate discretion.
Laptop searches are another entry in the seemingly endless parade of issues that pit the government’s compelling need to incapacitate terrorists and criminals against legitimate privacy interests. We shouldn’t worry much about Zacarias Moussaoui or Stefan Irving’s privacy, but we ought to be concerned about the rights of law abiding Americans who use their laptops when they travel overseas. A few tweaks to the government’s laptop search standards would help ensure that interests on both sides of the ledger are adequately protected.
— Nathan A. Sales is a law professor at George Mason University School of Law. He served in the Bush administration at the departments of Justice and Homeland Security.