International Business Travelers Beware

I.  Introduction

Picture yourself in the shoes of Maria Udy, a marketing
executive working for a travel management firm in Maryland. [1]  Udy, a
British citizen traveling from Washington D.C. to London, was pulled
aside by a federal agent because he had "a security concern" with her.
[2]   She was presented with a frustrating choice:  hand over her
laptop for the agent to search or miss her flight. [3]  In a similar
incident a tech engineer, a U.S. citizen who chose to remain anonymous
for fear of calling attention to himself, was pulled aside by a federal
agent who demanded that he log into his computer so that the agent
could search it. [4]  The engineer protested, as the computer belonged
to his corporation, but he logged in and watched in dismay as the
federal agent copied down each of the websites he had visited. [5]
Sadly, these incidents are far from isolated. [6]

Technological advances have provided international
business travelers with innumerable benefits, but recent border search
jurisprudence threatens to nullify the conveniences of this medium by
subjecting such travelers to random, invasive searches of their
electronics. [7]  Indeed, in this age where a business traveler's
laptop can be as indispensable as his or her wallet (and capable of
carrying so much more), privacy protections have become all the more
essential.  Furthermore, due to conflicting precedents in two recent,
landmark cases, the future of privacy protections in the digital age is
entirely uncertain. [8]  This article will not only examine the current
state of the law of border searches with regard to technology, but it
will also analyze the merits of arguments made in salient, recent cases
that will shape the future of the law in the field.

II.  The Current State of the Law of Border Searches

The Fourth Amendment provides in relevant part that "[t]he
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures shall not be
violated." [9]  Typically, such searches must be backed by a valid
warrant particularly describing the places and items to be searched;
[10] however, in the interest of national security, the courts have
long recognized an exception to this general protection allowing
customs officers to perform warrantless, routine searches of those
seeking entry or departure at the country's borders. [11]  Airports, in
the case of international travel, are considered the legal equivalent
of national borders. [12]

Routine searches of people and their luggage at the border
do not require any sort of reasonable suspicion or probable cause
justification. [13]  More invasive, non-routine searches (including
body cavity searches), however, do require reasonable suspicion of
illegal activity to perform. [14]  Furthermore, searches are allowed to
be broad in scope, but they are still subject to the reasonableness
limitation of the Fourth Amendment. [15]  The Supreme Court has
determined that searching inside sealed containers within luggage and
on one's person are within the scope of the Fourth Amendment. [16]

United States v. Ickes was the first case to tackle
the issue of whether border searches of laptops were permissible. [17]
In that case, Ickes was attempting to return to the United States in a
van via the Canadian/U.S. border in Detroit. [18]  A cursory search of
the van revealed illegal materials, including loose marijuana seeds and
a tangible album of child pornography. [19]  Upon the discovery of
those materials, the officer searched his laptop computer and found
more files containing child pornography. [20]

The court ruled that the powers of customs officials to
perform border searches is necessarily broad, and the search of the
laptop in this case did not violate the Fourth Amendment. [21]
However, the court did not explicitly mention what level of suspicion
would be necessary to perform such a search in general, pointing
instead to the several initial, overt indicators of illegal activity
that prompted reasonable suspicion. [22]  Absent such reasonable
suspicion, it is unclear what the court would have ruled, and the
question has remained for other circuits to answer.

III.  Conflicting Precedents Paint an Uncertain Future for Privacy Concerns in International Travel

     A.  US v. Romm:  One Giant Leap for Government Power Over Privacy

The Ninth Circuit has been the leader in applying
conventional border search exception doctrine to new technologies,
including laptops.  In a string of cases, the Ninth Circuit reaffirmed
the traditional border search exception doctrine. [23]  The Ninth
Circuit entered new legal territory in its landmark case United States v. Romm.  However, it took advantage of a technicality to avoid settling an important point of law. [24]

Romm sought entry into Canada from the United States but
was denied because of a previous criminal conviction on his record.
[25]  In searching his belongings, Canadian Border Services required
him to turn on his laptop. [26]  They investigated his internet search
history, finding several web addresses that they suspected contained
child pornography. [27]  Romm simply responded to their accusations
with, "That's it.  My life's over." [28]  The agents held him in
detention before placing him on the next flight to Seattle, alerting US
customs agents there that he "possibly had illegal images on his
computer." [29]  Customs agents brought in a expert computer forensics
team to search Romm's computer. [30]  In the team's "preliminary
analysis," they utilized software powerful enough to recover deleted
files and to determine when those files were created, opened, or
modified. [31]  A more extensive search was performed, but no
information regarding the procedure followed was included in the case's
facts. [32]  No photos were found in regions of Romm's hard drive over
which he had control, yet, based on photos found in Romm's internet
cache and deleted items, the court upheld his conviction for knowingly
possessing child pornography. [33]

The court recognized that deciding whether the search of
Romm's computer (and, potentially, the search of laptops in general)
was routine or non-routine could set an important precedent for future
courts. [34]  The court declined to make such an indication, reasoning
that they were not required to rule on the issue because Romm had
failed to include it in his opening brief. [35]  Instead, the court
stated simply that even if it were non-routine, there was sufficiently
reasonable suspicion to sustain the search. [36]

The most significant aspect of this decision is the
court's view that such an incredibly invasive search was warranted
given the smallest of reasonable suspicion–namely, the Canadian Border
Patrol officer's indication that Romm possibly had illegal
images on his computer. [37]  This suspicion was sufficient to justify
a preliminary search that delved into files that Romm had either tried
to permanently delete or files to which he did not have access–and it
is entirely unclear what means were employed in the "full search." [38]

Under this approach, consider someone receiving an
unsolicited, spam e-mail containing illicit photos.  Even if that
person instantaneously deleted the e-mail, a border search (or any
search, for that matter) could conceivably reveal the message, and it
could be used as evidence against him or her in court.  This prospect
becomes even more frightening if such searches can legally be performed
routinely–i.e. without reasonable suspicion.  Furthermore, many
laptops, especially those of business travelers, contain sensitive and
private data.  This court's view could potentially open the floodgates
for government searches capable of accessing all kinds of computer
data; nothing noted in the opinion limits the scope of the government's
search. [39]  International travelers should not have to take magnets
to their hard drives to ensure their privacy and legal safety.

     B.  US v. Arnold District Court Decision:  Recoiling Against Romm

In United States v. Arnold, the Court of the
Central District of California chose to directly grapple with whether
border searches of laptops should be classified as routine. [40]
Arnold had just returned to Los Angeles after a twenty hour flight from
the Philippines, where he had been visiting for three weeks. [41]  A
customs official at the airport selected him for additional
questioning. [42]  She asked him to turn on his computer so she could
see if it was working; once it turned on, she handed it to another
customs official for him to search. [43]  On Arnold's desktop, the
officer found two folders entitled "Kodak Pictures" and "Kodak
Memories." [44]  The officer opened files in both folders, finding one
picture showing two naked women; however, the State introduced no
evidence to demonstrate that the women depicted were minors. [45]  The
customs officials consequently called in Department of Homeland
Security agents and other federal agents to interrogate Arnold and to
thoroughly search his computer. [46]  In the subsequent search, the
agents discovered numerous pictures that they determined to be child
pornography. [47]

Citing a string of Ninth Circuit cases that largely
referenced invasive, physical searches, the court held that any search
that implicates privacy and dignity rights must be predicated on
reasonable suspicion. [48]  This is a sound, inoffensive position:
though this court recognized that there must be some concessions made
to privacy to protect national borders, it still recognized that just
because someone is at the nation's border does not mean they should be
required to sacrifice their dignity without, at the bare minimum, some
form of basic justification. [49]

The most contended point of the court's analysis revolves
around its further holding that a search of a person's laptop
implicates privacy and dignity interests. [50]  Springboarding off the
Ninth Circuit's decision in United States v. Molina-Tarazon
(asserting that "government intrusions into the mind . . . are no less
deserving of Fourth Amendment scrutiny than [physical intrusions]"),
[51] the court indicated that because of the vast amount of private
thoughts and sensitive data that can be stored on data drives,
searching them is analogous to searching the mind, and thus they
implicate privacy and dignity interests. [52]  Consequently, the court
held searches of laptops and other electronic storage devices require
reasonable suspicion. [53]

This holding, while not technically inconsistent with Romm, emphasizes a more progressive set of values.  Whereas Romm focused on the need for broad discretion to protect the nation's borders, Arnold warns of the dangers of limitless discretion to natural, personal rights.  The State, believing that values espoused in Romm were more fundamentally consistent with the Ninth Circuit's prior border search jurisprudence, appealed the decision. [54]

     C.  US v. Arnold Appeal:  The Future of the Law

The State's pending appeal of the Arnold decision will force the Ninth Circuit to make the very decisions that it avoided in Romm.
[55] These decisions will certainly shape how the law regards customs
border searches of laptops, but particular arguments, if adopted by the
court, could also be very persuasive as to how other branches of the
law will treat computers and electronic storage devices.  Recognizing
the powerful implications of this decision, various privacy rights
groups have have brought out a veritable arsenal of arguments to
attempt to influence intelligent and responsible policies that protect
both privacy interests and national security.  The Electronic Frontier
Foundation (EFF), a San Francisco non-profit dedicated to preserving
civil liberties in the digital age, and the Association of Corporate
Travel Executives (ACTE) submitted an amicus brief in support of
Arnold's position in an effort to protect their vested privacy concerns
and rebut the State's positions. [56]  The arguments in this clash of
heavyweights are extremely telling as to the potential future of
electronics in the legal world.

The State amassed a series of powerful arguments, but
perhaps its first argument could have the most drastic–and
dangerous–consequences:  it argued that "computer storage devices are
constitutionally indistinguishable from other closed containers subject
to suspicionless border searches." [57]  The State contends that, for
example, carrying around a laptop containing assorted files is the
equivalent of carrying hard copies of all those files in a briefcase,
and because customs can legally search those hard copies, it should
likewise be able to search hard drives. [58]  This argument is
deceptively simple.

The truth is that laptops and electronic storage devices
are not simply "digital briefcases;" not only are they capable of
containing much more information, but they frequently possess kinds of
information that are fundamentally different from things we carry
around in a briefcase.  For example, on my computer I keep files
containing my most private thoughts and musings about politics,
religion, and the world.  I have e-mails and school papers dating back
to the year 2000.  I have my entire scanned and digital photo
collections, music collection, and computer game collection.  I have
receipts for nearly everything I have ever purchased online and records
of many things purchased in brick-and-mortar stores.  My laptop is an
organized and thorough catalog of my work–of my mind–of my life.
These things do not just implicate my privacy and dignity rights, they
implicate those of anyone with whom I have ever communicated.  A
briefcase or suitcase contains what a person needs for that particular
trip.  Maybe it also contains a journal or a photo album.  But it does
not and cannot contain a record of one's life like a laptop can.
Laptops are no longer just for business; in the digital age in which we
live, laptops can and do store so much more.  A sound judicial rule
must understand the true breadth of the privacy and dignity interests
that are implicated by further technological advances.

Furthermore, laptops carry all kinds of information over
which the owner is generally not in control.  For example, the only
list that is kept of what paper copies one views is in one's own mind.
By contrast, very nearly every action taken on a computer leaves some
kind of tracks, like internet search histories and caches, photo meta
data, system preferences, cookies, and so many other kinds of
"behind-the-scenes" forms of digital data ubiquitous yet invisible to
the ordinary user.  The facts of Romm illustrate this point
perfectly.  When one wants to remove a hard copy from one's briefcase,
one does just that:  removes the paper and perhaps shreds it to ensure
privacy.  Even files that Romm tried to virtually "shred" were able to
stick to him in ways that paper simply does not.  If a briefcase were
capable of spontaneously generating eBay purchase histories, old book
reports, or shredded documents, the State's assertion might be more
apt.  But because this is not a realistic perception of the world in
which we live, it is essential to adopt a rule that accurately
understands the true scope of technology in the digital age and does
not set a dangerous precedent for other courts by irresponsibly
blending the legal statuses of two distinct categories of objects.

A second major contention by the State is that it has a
vested interest in performing warrantless border searches of laptops
without reasonable suspicion. [59]  It argues that computers "can serve
as repositories for all manner of dutiable goods and digital
contraband." [60]  The District Court decision also acknowledges that
searches of laptops could reveal illegal content such as child
pornography or terrorist plans. [61]  Yet, ironically, if the court
were to adopt a rule giving customs officials full power to conduct
suspicionless, warrantless searches of laptops, it would completely
undermine the effectiveness of their searches.  As the EFF and ACTE
astutely argue in their amicus brief, because the information is
digital, it can easily be transported over national borders via the
internet, and with far less risk to criminals than keeping it on a
drive that would be searched. [62]  The court would be breeding
strains of criminals more careful and cunning in their illegal pursuits
and immune to the laws.  Quite simply, this rule would punish and
inconvenience a tremendous multitude law abiding citizens in order to
catch a nominal amount of hapless criminals.  To give the State this
power would not advance any legitimate state objectives; it would in
fact impede them.

To be clear, the court is not stuck between the two poles that the decisions in Romm
and by the District Court create.  It could choose to strike a creative
balance of the values espoused by both cases.  However, the suggested
rules by the EFF and the ACTE in the amicus brief seem to best protect
the myriad of interests at stake on all sides and happen to closely
align with the District Court's decision.  They suggest that routine
searches of laptops and electronics to ensure that they are not weapons
or bombs is fully sensible, while searching data therein can only be
done with reasonable suspicion of wrongdoing. [63]  This would protect
vital national security interests and would acknowledge privacy rights
as being of a high priority.  The Ninth Circuit could achieve this by
affirming the District Court's decision.

However, the Ninth Circuit judges may have already betrayed their biases in oral testimony during the Arnold
appeal.  Of the total thirty-three minutes of testimony by both sides,
the State spoke relatively uninterrupted for the opening seven minutes.
[64]  When the court did interject questions, it did so using language
to impliedly dissociate themselves from the decision of the District
Court. [65]  By contrast, Arnold's defense attorney was grilled with
nearly a dozen questions and frustrated judicial interjections for the
next twenty minutes. [66]  Many questions emphasized the broad
discretion for the State to perform border searches, and some judicial
responses indicated a hesitancy to believe that digital storage devices
were really any legally different from closed containers. [67]  While
the court has not yet issued a decision, the court will hopefully
recognize the vital privacy and legal issues at stake and create a
sensible rule for governing new technologies in a changing world.

     D.  The EFF Fights for Transparency of Governmental Policy

Despite the District Court's ruling in Arnold and
the case's pending appeal, customs officials have continued the
practice of random searching and seizing of laptops. [68]  Furthermore,
there are allegations that some Transportation Security Administration
(TSA) officers have confiscated various electronic devices to not only
be searched but also to be copied. [69]  Responding to a slew of
complaints over these surprise searches and seizures at airport
terminals, [70] the Asian Legal Caucus (ALC) and the EFF contacted the
TSA and asked for copies of their search and seizure policies pursuant
to the Freedom of Information Act (FOIA). [71]  The TSA failed to
deliver the information within the statutorily allotted amount of time,
and the EFF and ALC sued the TSA for injunctive relief–i.e. the
delivery of the policy statements. [72]

The TSA's reluctance to deliver this information pursuant
to statute is unsettling.  Transparency regarding inspection policies
would certainly help enforce citizens' privacy rights.  Knowing what
can be searched and when can help a traveler prepare for travel in such
a way that ensures a speedy visit through security while being able to
protect information they deem important.  It is a situation that would
benefit both government and travelers:  the TSA can ensure safety
faster and with less hassle, and travelers can rest easily knowing that
their information and electronics are theirs alone.

IV.  Conclusion

Each of the decisions discussed above will have a powerful
effect on the way the law regards technology and privacy rights,
especially at the nation's borders.  The Ninth Circuit's decision in Romm
may be the logical extension of the traditional border search exception
doctrine to electronic technology.  However, just because the decision
is consistent with tradition does not mean it sets the appropriate rule
for governing new technologies.  The Arnold District Court decision made important connections among privacy rights, dignity, the mind, and electronic data.

The Ninth Circuit has an important decision to make about
the future of privacy rights for technology.  The variegated arguments
by the State and interested parties like the EFF help illustrate what
rules are possible and what their consequences may be.  It would be a
dangerous oversimplification of the issue to treat digital storage
devices like any other unopened container because it would ignore the
true breadth of what these devices can and do store.  Furthermore,
granting the government this power does not further legitimate state
objectives.  The EFF and ACTE's suggestions balance privacy and
national security well, ensuring all sides' objectives are met.
Regardless of the outcome of the Arnold appeal, at the very least transparency of governmental policies can only help protect citizens' rights.

There are privacy interests at stake in these cases that
are not only of importance to business travelers, they are important
for shaping how the courts will view electronic devices in other
fields.  Consequently, the courts must look beyond precedent and craft
a rule that can successfully safeguard rights, freedoms, and
protections in the ever-changing and developing world in which we live.

 

[1] Ellen Nakashima, Clarity Sought on Electronics Searches, Wash. Post, Feb. 7, 2008, at A01, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/02/06/AR2008020604763.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Complaint for Injunctive Relief for Violation of the Freedom of Information Act, 5 U.S.C. § 552, at 3-4, available at http://www.eff.org/files/filenode/alc/alc-complaint.pdf.

[7] Id.

[8] United States v. Romm, 455 F.3d 990 (9th Cir. 2006); United States v. Arnold, 454 F.Supp.2d 999 (C.D. Cal. 2006).

[9] U.S. Const. amend. IV.

[10] Id.

[11] Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).

[12] Id., at 272-73.

[13] United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).

[14] United States v. Okafor, 285 F.3d 842, 845-46 (9th Cir. 2002).

[15] United States v. Ramsey, 431 U.S. 606, 618 (1972).

[16] Robbins v. California, 453 U.S. 420, 426 (1981).

[17] United States v. Ickes, 393 F.3d 501 (4th Cir. 2005).

[18] Id., at 502.

[19] Id.

[20] Id., at 503

[21] Id.

[22] Id.

[23] Okafor, 285 F.3d at 842; United States v. Vance, 62 F.3d 1152, 1156 (9th Cir. 1995).

[24] Romm, 455 F.3d at 997.

[25] Id., at 994.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id., at 994-95.

[32] Id., at 995.

[33] Id., at 994.

[34] Id., at 997.

[35] Id.

[36] Id.

[37] Id., at 994.

[38] Id., at 995-96.

[39] Id.

[40] Arnold, 454 F.Supp.2d at 1003-04.

[41] Id., at 1001.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id., at 1001-03.

[49] Id.

[50] Id., at 1003-04.

[51] United States v. Molina-Tarazon, 279 F.3d 709, 716 (9th Cir. 2002).

[52] Arnold, 454 F. Supp.2d at 1003-04.

[53] Id.

[54] United States v. Arnold, 2007 WL 2434085, Government's Reply Brief, July 16, 2007, at 17-21.

[55] United States v. Arnold, Case No. 06-50581.

[56] United States v. Arnold, CR 05-772-DDP, Brief for Amici Curiae
Association of Travel Executives and Electronic Frontier Foundation,
June, 19, 2007, available at http://www.eff.org/files/filenode/US_v_arnold/arnold_amicus.pdf.

[57] United States v. Arnold, 2007 WL 2434085, Government's Reply Brief, July 16, 2007, at 2-17.

[58] Id.

[59] Id.

[60] Id.

[61] Arnold, 454 F. Supp.2d at 1007.

[62] United States v. Arnold, CR 05-772-DDP, Brief for Amici Curiae
Association of Travel Executives and Electronic Frontier Foundation,
June, 19, 2007, at 5-6, available at http://www.eff.org/files/filenode/US_v_arnold/arnold_amicus.pdf.

[63] Id., at 3-6.

[64] United States v. Arnold, Oral Argument, October 18, 2007, available at http://www.ca9.uscourts.gov/ca9/media.nsf/9C28DC14D572E654882573780072E57E/$file/06-50581.wma?openelement.

[65] Id.

[66] Id.

[67] Id.

[68] Complaint for Injunctive Relief for Violation of the Freedom of Information Act, 5 U.S.C. § 552, at 3-4, available at http://www.eff.org/files/filenode/alc/alc-complaint.pdf.

[69] Id.

[70] Id.

[71] Id., at 4-6.

[72] Id., at 6-7.

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