November 01, 2012

Will the Fourth Amendment Protect Your Laptop at the Border?

John T. Floyd

According to a report in the September 9, 2009, San Francisco Chronicle, agents for the U.S. Customs and Border Protection (CBP) encountered more than 221 million travelers at ports of entry into the United States between October 1, 2008, and August 11, 2009. The agents searched approximately 1,000 laptops, of which 46 laptops were subjected to “in-depth” searches. The CBP agents, along with U.S. Immigration and Customs Enforcement (ICE) agents, accessed the business and personal files of the owners during these in-depth searches.

Trouble at the Border

These agents did not need reasonable suspicion of criminal activity to conduct these searches because border security inspections are deemed to be qualitatively different from searches conducted in the interior of the United States, which require some level of reasonableness under the Fourth Amendment of the U.S. Constitution. It may surprise some that these border agents can detain laptops (and other electronic devices) indefinitely while mining them for incriminating evidence of criminal activity, such as possession and/or distribution of child pornography, terrorism, or financial crime.

Premium Content For:
  • Solo, Small Firm and General Practice Division
Join - Now