Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion

from the 4th-amendment? dept

For a while now, courts have said that you have no 4th Amendment rights at the border, and border patrol/customs officials have every right to search your laptop. For a variety of reasons, this is problematic. As we've explained before, the contents of your laptop aren't the same as the contents of your suitcase in two very important ways:
  1. You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
  2. The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.
Unfortunately, the courts don't seem to take this into account. Also, a separate point that no one has yet answered for me yet: if you have a virtual drive mounted in the cloud somewhere (i.e., something like JungleDisk) can border patrol search that as well, even if it's not actually on your computer that you have at the border?

Either way, this issue has received plenty of attention over the years, with some officials trying to change the law (without much success). Homeland Security initially claimed that there were basically no rules limiting what it could do. However, more recently, the new administration clarified the rules somewhat -- though they're still pretty free to search anyone's laptop. But, one of the rules was that you were allowed to be present in the room while your laptop was being searched (though, you didn't get to see what they were doing).

It seems one aspect of that was broken by a border patrol computer search that involved taking a guy's broken computer to search it. The guy then sued, saying that the content on that laptop's hard drive (which included child porn) was inadmissable, because the search occurred off-site. A court recently ruled that the guy was half right. It basically said that border patrol can't just take laptops off-site for searches, but if there was reasonable suspicion to inspect the laptop, then it was okay. In this case, because some child porn had already been found on another laptop the guy had, it was deemed that taking the broken laptop off-site was reasonable.

That logic definitely makes sense, but I'm still wondering why we're using border patrol resources for this kind of thing? Yes, cracking down on child porn and the like is important, but that's got nothing to do with securing the border. If anything you wonder if this kind of thing becomes a distraction?

Filed Under: 4th amendment, border search, computers, privacy

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  1. identicon
    Brian Hayes, 3 Jun 2010 @ 9:20pm

    War sucks

    Pushing defense is rough. I wouldn't wake up in the morning excited to search people. It's a job for most but it's a duty for all.

    Sloppy is not good. Sloppy is too close to tyranny and we all know about that. What can we say to somebody with the right to peer into everything we own? I'd like a good calm answer that's better than saying I'll be rude or I'll be silent!

    Tough days. It's not a blitz of fire hoses, but it's a blitz nevertheless. We took Kings to the ground and damn iron weapons too. Now what are we supposed to do? Terror isn't comic Hollywood. It's a trillion here and a trillion there and it hurts and kills.

    Weapons may never end weapons. Understanding might. But we will wait a long time for that.

    In the meantime, let's be sure our people respect us and treat us well. Let's be sure we also give staff every chance to discover threats. That's our policy. No?

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