US upholds the right to search your laptop at the border without warrant

Filed Under: Featured, Law & order, Privacy

Customs sign, courtesy of ShutterstockHere's a riddle: Why did the US customs agents search your laptop at the airport?

Answer: Oh, well, it's hard to say. They just kind of had a hunch that you were suspicious, you know?

It sounds like a hyperbolically offhand rationale to justify disregarding travelers' constitutional rights against unreasonable searches (at least, the rights of US citizens, supposedly guaranteed by the Fourth Amendment), but the glibness is barely exaggerated.

Here's the actual wording used by the Department of Homeland Security (DHS) to explain why it can't change its electronic device search policies:

...we have been presented with some noteworthy [Customs and Border Protection (CBP)] and [Immigration and Customs Enforcement (ICE)] success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment.

Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.

The quote comes from a statement [PDF] released by DHS on Wednesday.

The statement is in response to a Freedom of Information Act filed by the American Civil Liberties Union (ACLU). It includes a so-called complete version of its justification of warrantless border searches of laptops, of which it released an executive summary in February.

The executive summary [PDF] put out in February barely addressed questions of if and how warrantless searches violate First and Fourth Amendment rights.

Basically, DHS's rationale for warrantless searches being Constitutionally OK amounted to "because we said so."

An example of the executive summary's "we don't have to explain ourselves to you" style with regards to the First Amendment:

First Amendment

Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights. However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.

The statement released on Wednesday has constitutional analysis, but it's largely redacted.

DHS Border Searches of Electronic Devices

In some of its non-redacted reasoning, however, DHS says that border agents have to act fast. If the legal threshold to search device content were to be raised, resulting litigation would muck thinks up:

... commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search...

The litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches...

Although this Office does not advocate arbitrary decision-making, we understand that there may be occasions where officers have only a few seconds to make important decisions about admissions and searches, and where they lack the opportunity to use routine criminal investigative techniques to develop reasonable suspicion or probable cause to justify the inspection of containers.

Officers must therefore frequently make important choices based on inadequate and imperfect information.

The ACLU takes issue with this notion.

ACLU legal fellow Brian Hauss wrote in a blog posting on Wednesday that the government has plenty of ways to keep sensitive information from leaking out in court:

The government has numerous resources at its disposal to prevent the disclosure of sensitive information.

The "state secrets privilege," to take just one example that is used in court cases, has been criticized on many grounds, but no one has ever seriously suggested that its protections are too anemic.

Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built.

Border patrol, courtesy of ShutterstockThe Feds also nixed suggestions that ICE and CBP revert to a 1986 policy that allowed agents to “briefly peruse” a traveler’s possessions to determine if there was probable cause or a reasonable suspicion for a further seizure.

Such a policy is "not tenable" given the capacity of modern devices, DHS wrote:

Gigabytes of information may be stored in password-protected files, encrypted portions of hard drives, or in a manner intended to obscure information from observation.

An on-the-spot perusal of electronic devices following the procedures established in 1986 could well result in a delay of days or weeks; even a cursory examination of the contents of a laptop might require a team of officers to spend days or weeks skimming the voluminous contents of the device.

At the same time, a firm time limit for completing a search risks allowing a wrongdoer to "run out the clock" by encrypting and password-protecting his device, or traveling with voluminous amounts of documents, or other measures to make the search very time consuming.

None of this is surprising.

Civil liberties advocates have long referred to US ports of entry as "Constitution-free zones".

The heavy black ink of redacted Constitutional analysis, to my mind, symbolizes the black hole where travelers' Constitutional rights go to die.

Image of customs and border patrol courtesy of Shutterstock.

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13 Responses to US upholds the right to search your laptop at the border without warrant

  1. wolsonjr · 851 days ago

    Well said

  2. Lee · 851 days ago

    Kinda funny (in a non-humorous way) that the article just before this one was: "US child porn suspect doesn't have to decrypt hard drives - yet".

    So if I'm understanding my government's logic, if there's "...enough evidence to convict Feldman - the child porn suspect - of possessing child abuse images..." he (the suspect) doesn't have to decrypt his hard drives.

    But if there's NO evidence that a returning US citizen has committed any crimes, that citizen must submit to a warrantless search of his computer at the border.

    Anybody else see the absurdity of this? Or is it just me?

  3. NoSpin1600 · 851 days ago

    So if your hard drive is encrypted your are required to decrypt it so a customs agent or border patrol agent can view the data?

  4. Cliff Jones · 851 days ago

    ...and 10 years from now a study will show the majority of devices searched were selected due to the attractiveness of the individual carrying it.

  5. John C · 851 days ago

    The argument that DHS can enhance security by excusing itself from constitutional restrictions could apply to almost any warrantless search/wiretap/property seizure that any police agency wants to commit. Fortunately, the courts have not shown much sympathy for the "we'll obey the constitution when it's convenient" policy. I hope the ACLU can successfully challenge this practice in federal court.

  6. keruzam · 851 days ago

    ... and how are we going to search the Cloud :)

  7. Christine · 851 days ago

    Hey the Cloud isn't safe either... don't you read the news?

    • NoSpin1600 · 848 days ago

      Due to changes in weather patterns (or global warming if you subscribe to such) the cloud is drying up.

  8. Randy · 847 days ago

    Searching a laptop for explosives is one thing but searching the data it contains is quite another.
    If I wanted to bring data across the border I'd simply encrypt the data and then encrypt the email I send to myself which contained the encrypted data. Enter the U.S. with a clean laptop and then check my email when I get home.
    There are so many ways (such as TOR Onion) to transmit data over the Internet privately that it wouldn't seem necessary to physically transport a laptop over the border anyway.

  9. JRD · 847 days ago

    What, then, is the best course of action for travelers?
    FedEx their laptops / phones / USB drives instead of taking them as carry-on?

    • Philip - Los Gatos · 651 days ago

      You probably have taken pictures so back those up on a thumb drive and snail mail it back to your home before you board the plane. In the case of my laptop, anyone trying to log in more than 10 times without getting it right forces the machine to wipe itself. I presume that after a fancy, DHS has to give your machine back to you....

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.