Can the government take away my laptop?

Judge Alex Kozinski of the 9th Circuit Court of Appeals ruled that U.S. border agents can search electronic devices without probable cause.
Judge Alex Kozinski of the 9th Circuit Court of Appeals ruled that U.S. border agents can search electronic devices without probable cause.
Paul Sakuma/Getty Images

A woman stands in line at the airport, waiting to get through customs to return to the United States. She checks her BlackBerry for e-mail messages and shifts her computer briefcas­e to her other hand. Two uniformed men walk up to the traveler and ask her to step out of the line. They explain they're conducting a random search and that they need to look at her phone, her laptop and any other electronic devices she has. The woman asks when she can expect her property to be returned to her. The men in uniform tell her they can't be sure; they'll return the electronics when they're done searching.

According to the 9th Circuit Court in San Francisco, such a scenario is not only possible, it's completely legal. Federal Customs and Border Patrol agents have the right to confiscate and examine electronic devices belonging to anyone entering the United States. The agents aren't required to have probable cause before searching someone's devices. And they can look for any evidence of any crime at all.

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This policy worries many international businesses that employ people who travel to and from the United States on a regular basis. It also might come as a shock to many U.S. residents. In most cases, citizens are guaranteed protection against unreasonable searches and seizures. Some people say that a policy in which a government agent could confiscate any electronic device for an indefinite length of time with no probable cause contradicts the Fourth Amendment of the U.S. Constitution. The 9th Circuit Court seems to feel otherwise.

U.S. Homeland Security officials claim that the policy is in place to protect the safety of the nation. They also claim that agents will not profile passengers or stop people based solely on their ethnic background or country of origin. But some critics say that in practice agents seem to target people from specific countries. An article in The Seattle Times suggests that government agents focus on Muslims and people from the Middle East or the southern parts of Asia more than others [source: Tu].

Border searches fall under the category of delicate issues -- proponents point out that an effective search might save millions of lives while critics say the potential for policy abuse is far too high to justify such an approach.

The United States v. Arnold

U.S. Customs and Border Patrol agents can seize electronic devices coming into the country and hold them indefinitely.
U.S. Customs and Border Patrol agents can seize electronic devices coming into the country and hold them indefinitely.
Joe Raedle/Getty Images

On July 17, 2005, Customs and Border Patrol agents at Los Angeles International Airport stopped a U.S. citizen named Michael Timothy Arnold for secondary questioning. Arnold had just arrived at the airport from the Philippines. During the questioning, an agent asked Arnold to turn on his laptop computer. Arnold complied, and the agent handed the laptop over to a coworker.

The second agent looked at Arnold's computer desktop and saw that two folders contained pictures. The agent opened the folders and viewed the photos. Before long, the agent began to suspect Arnold possessed child pornography. The agents seized the laptop and other equipment but let Arnold go.

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Two weeks later, federal agents secured a warrant against Arnold based on the material found on Arnold's digital media. That included not only the laptop, but several CDs, a portable hard drive and a flash memory drive. Agents charged Arnold with possession and transportation of child pornography.

Arnold's lawyers filed a motion to suppress the evidence found by the agents. They claimed that the agents overstepped their authority by searching Arnold's electronic data. They argued that while it's almost second nature to expect agents to search for potential physical threats that could pose an immediate danger -- a bomb disguised as a laptop, for example -- actually searching the contents of the devices was another matter.

The district court agreed with Arnold's lawyers and suppressed the evidence. But the prosecution appealed the decision, and the case went to a higher court. That court reversed the district court's decision, saying that searches at the U.S. border, including customs, are exempt from the qualifications government agents must meet for searches elsewhere [source: United States v. Arnold].

Arnold's lawyers appealed that ruling, and the case moved to the 9th Circuit Court in San Francisco, California. In a 3-0 decision issued on April 21, 2008, the court ruled to uphold the previous court's decision to reverse the ruling [source: United States v. Arnold]. The court's decision means that in order to protect national security, federal agents can confiscate electronics without probable cause and search them for evidence of a crime.

While the U.S. Department of Homeland Security says it intends to use this policy to help protect the United States from terrorist attacks, the judgment itself says agents can look for evidence of any crime at all. That means agents can comb through files and look for anything that might be illegal. Electronic searches can take days, weeks or even months to complete. Agents can confiscate electronics for an indefinite length of time -- there's no way of knowing when, or if, the government will return a device to the owner.

Laptop Seizure Policy Concerns

Entering the United States might mean surrendering your electronic devices.
Entering the United States might mean surrendering your electronic devices.
@iStockphoto/dra_schwartz

Much of the response online to the 9th Circuit Court's decision has been critical. There are numerous Web sites that lob the term unconstitutional around. Others focus on how people can protect their equipment and information when traveling to the United States. A few Web sites support the initiative, pointing out the very real difficulty in protecting a nation like the United States from the threat of a terrorist attack.

Some critics say that the policy is too broad to be considered a protection against terrorism. They say that if federal agents can search electronic devices for evidence of any crime at all -- as was the case with Michael Arnold -- then the policy doesn't really target terrorists. Instead, it targets everyone.

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Some people shift from criticism into the realm of conspiracy theory. These people suggest that organizations like the Recording Industry Association of America (RIAA) are lobbying for these policies. The theorists believe that these organizations hope to use federal agents to search for illegally obtained music or media files. Effectively, the federal government would act as the music police. While there's little doubt these organizations will benefit from the U.S. policy on searches and seizures, there's no real evidence to link them with the decision of the courts.

According to The Washington Post, several international businesses are changing their policies on international travel. The businesses are urging executives to avoid storing confidential business information on laptops when traveling to the United States. International businesses fear that the U.S. policy will compromise critical, proprietary information. In addition, if the critical information only exists on the confiscated device, the business is at the mercy of the U.S. government [source: Nakashima].

Some bloggers focus not on changing the policy or protesting, but on how to get around the system. Here are a few of the methods they suggest:

  • Leaving your electronics at home when you leave and return to the country
  • Partitioning your hard drive using two levels of encryption to hide the partition
  • Storing private information on a device like a smart card or flash drive and keeping it on your person
  • Wiping your electronics clean and storing all your sensitive information on a virtual private network (VPN) or a secured cloud computing connection

Of course, hiding information from customs agents isn't advisable. For one thing, if a government agent catches on that someone is hiding information, things will likely get much worse before they get better. For another, if enough people take measures to hide information, the government might push for more invasive policies. It's probably safe to say this story is far from over.

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More Great Links

Sources

  • Electronic Frontier Foundation. "US vs. Arnold." (Aug. 6, 2008) http://www.eff.org/cases/us-v-arnold
  • Nakashima, Ellen. "Clarity Sought on Electronics Searches." Washington Post. Feb. 7, 2008. (Aug. 6, 2008) http://www.washingtonpost.com/wp-dyn/content/article/2008/02/06/AR2008020604763.html
  • Schneier, Bruce. "Taking your laptop into the US? Be sure to hide all your data first." The Guardian. May 15, 2008. (Aug. 6, 2008) http://www.guardian.co.uk/technology/2008/may/15/computing.security
  • Singel, Ryan. "Border Agents Can Search Laptops Without Cause, Appeals Court Rules." Wired. April 22, 2008. (Aug. 6, 2008) http://blog.wired.com/27bstroke6/2008/04/border-agents-c.html
  • Tu, Janet I. " Privacy vs. border security: Critics say laptop searches cross the line." The Seattle Times. July 23, 2008. (Aug. 6, 2008) http://seattletimes.nwsource.com/html/localnews/2008067440_searches23m0.html
  • The Tucson Citizen. "Electronics subject to search, seizure at the border." August 2, 2008. (Aug. 7, 2008) http://www.tucsoncitizen.com/ss/border/92648.php
  • United States Court Of Appeals for the Ninth Circuit. "United States of America v. Michael Timothy Arnold." Filed April 21, 2008. Amended July 10, 2008. (August 5, 2008) http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ ABF5C42AFF3A5CB688257481007EC203/$file/0650581.pdf?openelement
  • United States District Court for the Central District Of California. "United States of America vs. Michael Timothy Arnold." Filed October 2, 2006. (Aug. 6, 2008) http://www.metalincs.com/onthemark/wp-content/uploads/2008/01/usvarnold.pdf
  • USA Today. "Electronics subject to search at border." July 7, 2008. (Aug. 6, 2008) http://www.usatoday.com/tech/news/techpolicy/2008-07-06-laptopsearch_N.htm