How to Judge Computer Searches at the Border

      Justice Antonin Scalia does not believe in a “living” Constitution. But 10 years ago he led a closely divided Supreme Court in reaffirming, in a context the Framers could not have imagined, the central provision of the Fourth Amendment: to protect “the right of the people to be secure in their persons, houses, papers, and effects, from unreasonable searches and seizures.”
      In United States v. Kyllo (2001), Scalia wrote for a 5-4 majority that federal agents violated the Fourth Amendment by using — without a search warrant — a high-tech device called a thermal imager to measure the heat in a home that they suspected was being used as an indoor marijuana garden. In rejecting the government’s effort to reinstate the defendant’s conviction, Scalia reasoned that exploring the details of a private home that would previously have been unknowable without a physical intrusion amounted to a Fourth Amendment search, presumptively unreasonable without a warrant.
      Scalia’s 21st-century fidelity to the Fourth Amendment may be tested again when an important issue slowly developing in the lower courts reaches the justices. The issue: how far can the government go at the border in searching the electronic devices that travelers, citizens or not, bring with them from abroad?
      The traditional rule for border searches is that most anything goes. The government does not need probable cause, reasonable suspicion, or even an educated guess to conduct a thorough search of a traveler’s “person” and “effects” before allowing the traveler into the country. To search for drugs, one court ruled, the government can dismantle an automobile’s gas tank. To search for illegal immigrants, another court ruled, the government can stop and search a vehicle as much as 100 miles or more from the border.
      First under President George W. Bush and now under Obama, the government has invoked this authority to make travelers’ laptop computers pretty much fair game at the border. Policy directives for the two federal border protection agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), authorize agents to seize and search computers or other electronic storage devices for a matter of days. If necessary, the computers can be taken to a location far from the border to allow experts to conduct a complete search of the contents.
      To be clear, these searches go beyond the airport screening to guard against explosive devices hidden in computers’ innards. Transportation Security Administration (TSA) agents do not look at, much less read, whatever information a traveler has stored in the computer’s memory.
      At the border, however, more than 6,500 people have had their computers subjected to more thoroughgoing searches over the past two years, according to a report published last week [May 18] by the bipartisan Constitution Project. In a 12-page
report, the group’s Liberty and Security Committee — with members spanning the ideological spectrum from left to right — called on the Department of Homeland Security to discontinue border searches of laptops except with reasonable suspicion of wrongdoing.
      Had the Framers only known, they surely would have included laptop computers, smart phones, and personal digital assistants within the definition of “effects” presumptively protected from the government’s prying eyes. Today’s computer-toting travelers may bring with them a mother lode of personal or business-related information in which they have, as the legal jargon goes, a “reasonable expectation of privacy.”
      Some lower federal courts have balked at giving federal agents free rein for border searches of computers. Unfortunately for civil libertarians, cases testing the government’s authority so far tend to involve an unsympathetic class of defendants: child pornographers.
      In one case, San Franciscan Andrew Hanson had his computer searched months after he returned home in January 2009 from a trip to Seoul, South Korea. A customs agent, tipped off by Hanson’s nervous behavior, seized the computer and turned it over to forensic experts, who eventually found a cache of child pornography. In June 2010, U.S. District Court Judge Jeffrey White ruled that the delayed searches, without a warrant, violated Hanson’s Fourth Amendment rights.
      In another, convicted sex offender Howard Cotterman had to turn over his computer at a U.S. border station in Arizona in April 2007. A passport check showed that Cotterman was on a watch list based on a 1992 for sexual molestation of a child. A search conducted two days later at a government office 170 miles away turned up, as in Hanson’s case, a trove of child porn. U.S. District Court Judge Raner Collins ordered the evidence suppressed, but in a 2-1
decision on March 30 the Ninth U.S. Circuit Court of Appeals disagreed and reinstated charges against Cotterman.
      In its report, the Constitution Project says the second-level computer searches ought to require something other than an agent’s hunch. For a U.S. citizen, the standard should be reasonable suspicion that the computer has illegal material or evidence of illegal activity; for a non-citizen, reasonable suspicion that the traveler has been involved in illegal activity. In either case, the group says there should be further restrictions to protect business secrets or privileged information. Those tests, the group says, give sufficient deference to law enforcement needs while preserving Fourth Amendment protections.
      The Supreme Court may not get the issue any time soon. But when it does, the case will be a good test of how the justices — and Scalia in particular — enforce a right cherished by the Framers in a setting they could never have foreseen.