Federal border agents did not violate the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches in examining the contents of a traveler’s laptop without any basis for believing the device contains contraband, a federal appeals court in San Francisco has ruled. United States v. Arnold, No. 06-50581 (9th Cir. Apr. 21, 2008). The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Upon his return to the United States on an international flight, federal border agents asked Michael Arnold to turn on his laptop computer. One of the agents noticed folders on the opening screen, or “desktop”, named “Kodak Memories” and “Kodak Pictures.” Opening the files, the agent saw photographs of nude women. The agents continued searching the laptop and ultimately found photographs they believed were sufficient to charge Arnold with a violation of child pornography laws. Arnold was arrested and his laptop seized. The District Court suppressed the laptop search as suspicionless and unconstitutional under the Fourth Amendment’s prohibition against unreasonable searches and seizures by the Government. The Government appealed.
Pointing to limits drawn by the U.S. Supreme Court in border searches – those intrusive searches of the person and some searches of property that are so destructive as to require particularized suspicion – the Ninth Circuit held the search at issue was permissible. The court also rejected a First Amendment argument that a higher level of suspicion is needed for searches of “expressive material.”
The seemingly unchecked authority of federal border agents to conduct certain searches continues to raise the concern of international business travelers (and their employers), particularly executives carrying confidential and proprietary information on laptops and other electronic devices. In addition to business information, these devices may contain vast amounts of personal information, including personal communications and private banking- and health-related information. Many complain that agents often seize devices for further examination, do not return the equipment promptly, and provide no assurances that private information has not been unnecessarily breached, accessed by persons without appropriate authority and training, or copied and forensically examined.
With seemingly little to stop a border agent from examining the contents of a traveler’s computer or other electronic device upon reentering the U.S., companies should develop steps to minimize the likelihood and effects of these intrusions. Some of these should include:
- Travel with a laptop containing only the essential business information needed for the particular trip, or, as an alternative, send the laptop to your destination via a mail service.
- Have another source of the needed information available in the event your laptop is seized; back up the data in a secure fashion elsewhere.
- Avoid letting others who might access or download inappropriate information use your laptop.
- Be prepared to respond to questions and open files; limit the folders and icons that appear on your desktop.
- If your laptop is examined, document what happens and try to identify the persons involved.
- If your laptop is seized, obtain a receipt.
If you require assistance in developing policies and training employees to avoid or deal with these searches, Jackson Lewis attorneys are available.