By Nathan A. Sales
Should customs officers be able to search your laptop computer at the border the same way they inspect your suitcase?
Not if public opinion is any guide. Earlier this year, the Washington Post caused some heartburn when it reported that border officials occasionally “look at information stored in electronic devices such as laptops without any suspicion of a crime.” One U.S. Senator calls the searches “truly alarming.”
He’s not alone. Laptop searches can do real harm to ordinary travelers’ privacy interests. When told that the government claims the power to rummage through computers, BlackBerries, and flash drives at the border, many people react with shock, even revulsion. A laptop search seems terribly invasive. The average traveler may be willing to hand over his suitcase for inspection, but his laptop seems a bridge too far.
Yet it’s also true that laptop searches are an important tool in the government’s efforts to detect terrorists and combat child exploitation. In fact, federal courts have decided twelve cases involving laptop searches at the border, and every single one has involved child pornography.
My sense is that suspicionless laptop searches generally are consistent with the Fourth Amendment. Under the Supreme Court’s border-search doctrine, “non-routine” searches (e.g., invasive searches of the body) are off-limits unless officers have a reasonable suspicion of wrongdoing. By contrast, “routine” searches (e.g., searches of property) need not be based on any suspicion whatsoever. Routine searches are constitutional simply by virtue of the fact that they occur at the border.
How does the border-search doctrine apply to laptops? The consensus among lower courts is that laptop searches are “routine”; officers therefore don’t need reasonable suspicion before conducting them.
The courts are probably right, 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. Customs can inspect 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.
Of course, laptops are different from other property. They contain more personal data than other items that cross the border; the information can be quite sensitive; and the government might keep data from a laptop for a long time, maybe indefinitely. But while laptops are different, they don’t deserve a blanket exception to the border-search doctrine. In fact, laptop searches have the potential to be less, not more, intrusive than traditional border inspections of physical objects. With keyword searches, automated computer processes can identify specific data points that might warrant further investigation. That means human beings don’t need to rifle through the laptop’s hard drive manually.
While the Fourth Amendment imposes few restrictions on laptop searches, policymakers should adopt some additional safeguards. In particular, the government should formalize the standards it uses to pick travelers for laptop searches, to ensure people aren’t singled out for impermissible reasons like race or religion. It also should adopt rules for retaining information from laptops; if a search uncovers no evidence of crime, customs would be hard pressed to justify keeping any data. And the government should apply special protections to sensitive data like trade secrets and privileged correspondence. Supplemental standards like these would equip the government with the tools it needs, while helping to prevent the privacy interests of law-abiding travelers from becoming collateral damage in the war on terrorism.
Readers interested in this topic may wish to download my recent article, “Run for the Border: Laptop Searches and the Fourth Amendment.”
Nathan A. Sales served as deputy assistant secretary of homeland security for policy development from 2006-2007 and is now on the faculty of George Mason University School of Law.