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International Business Travelers Beware

By Michael Pellegrino

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 a 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.

---

Sources

[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.

Full post as published by The Journal of the Business Law Society on February 22, 2008 (boomark / email).