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With increasing frequency, international business
travelers are being confronted with the distinct
possibility that U.S. Customs and Border Protection
("U.S. Customs") may seize and extensively examine
the content of laptop devices routinely carried
across international borders. Business travelers,
concerned in large measure about the security and
protection of proprietary and personal information
stored on laptops and other electronic devices are
complaining about the justification and
intrusiveness of these searches. Not surprisingly,
such developments have led to the filing of lawsuits
in some jurisdictions as to whether or not U.S.
Customs' actions are constitutional and, if so,
within the administrative authority of U.S. Customs.
As a general rule, U.S. Customs has broad authority
to conduct searches of the personal belongings of
international travelers under the so-called "border
search exception" to the Fourth Amendment. Although
neither a warrant nor probable cause is required for
routine searches of persons and belongings, the
courts have clearly stated that more intrusive or
non-routine searches must be based upon a reasonable
and articulable suspicion of wrongdoing. Border
searches in either case are generally subject to a
reasonableness standard, which may involve a
judicial determination that balances the intrusion
into an individual's legitimate privacy and dignity
interests against the Government's legitimate
interest in the subject of the search.
The constitutionality of border searches of laptop
computers has been the subject of a limited number
of court decisions. Judicial review in this area
will undoubtedly increase as more cases are filed by
international business travelers and their
employers. To date, courts in at least two
jurisdictions have upheld the search and analysis of
laptop computers by the Government under the broad
plenary power afforded to U.S. Customs pursuant to
the border search doctrine. These decisions are
consistent with U.S. Customs' stated position that
computer devices are conceptually no different than
other containers such as carry-on luggage, paper
documents, handbags or miscellaneous other types of
containers. As recently stated by the Public Liaison
Office at U.S. Customs Headquarters in Washington,
D.C., "[L]aptop computers may be subject to
detention for violation of criminal law such as if
the laptop contains information with possible ties
to terrorism, narcotics smuggling, child
pornography, or other criminal activity."
In a recent, important case in California, a Federal
District Court decided that the opening and
examination of confidential computer files by U.S.
Customs was unreasonable, overly invasive, and
violated the constitutional rights of an
international business traveler and U.S. citizen who
had arrived at Los Angeles International Airport
from the Philippines. The Court concluded that the
U.S. Customs officer failed to articulate a
reasonable suspicion that the confidential
information stored on the traveler's computer laptop
and USB drive contained evidence of a crime. The
Government's argument that suspicionless
non-destructive property searches by U.S. Customs
are reasonable per se was rejected. Instead, the
Court ruled emphatically that border searches of
laptops and other electronic devices are
unconstitutional under the Fourth Amendment unless
supported by reasonable and articulable suspicion of
criminal activity.
Unfortunately, last week the United States Court of
Appeals for the Ninth Circuit reversed the Federal
District Court's decision in its entirety. The Court
ruled that U.S. Customs may examine the electronic
contents of a passenger's laptop computer and other
electronic devices without any particularized
suspicion of criminal wrongdoing. Moreover, the
Court soundly rejected the argument that the search
of laptop computers is fundamentally different from
the examination of traditional closed containers,
despite their unique capacity to store large
quantities of confidential information.
The possibility that U.S. Customs may confiscate and
search the contents of a laptop in the possession of
an international business traveler has significant
implications with regard to the establishment of
effective policies for the protection of business
proprietary and personal information. This fact
notwithstanding, a 2006 survey by the Association of
Corporate Travel Executives indicated that 87% of
its members were unaware that U.S. Customs had the
authority to examine the hard drive and other
electronic media of travelers arriving at the United
States border from abroad.
Companies should instruct their employees to limit
or omit personal data on electronic devices carried
during travel - including financial and other
information in which one might otherwise have a
reasonable expectation of privacy. In addition,
important data stored on the business traveler's
laptop should be backed up on the company's system
in the event U.S. Customs elects to retain custody
of the laptop for a protracted period of time.
Finally, business travelers may also wish to
consider labeling programs and data on laptops in a
generic manner to minimize the likelihood and extent
to which U.S. Customs will conduct searches of
important and sensitive information. Taking such
precautionary measures will decrease the likelihood
of laptop searches by U.S. Customs officers.
For further information, please contact:
Peter A. Quinter, Esq.
pquinter@becker-poliakoff.com, Tel: 954.985.4101
Caleb W. Sullivan
csullivan@becker-poliakoff.com, Tel:
305.962.0303
Customs & International Trade Department
Becker & Poliakoff, P.A.
www.becker-poliakoff.com
Tel: 954.987.7550
Fax: 954.985.4176 |
