In April, the Ninth Circuit U.S. Court of Appeals in San Francisco upheld the government's power to conduct searches of an international traveler's laptop without suspicion of wrongdoing. The Customs policy can be viewed at: Multimedia File Viewing and Clickable Links are available for Registered Members only!!  You need to or
search_authority.ctt/search_authority.pdf.

Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

...the Supreme Court has called for a reasonable-suspicion standard for certain types of border searches such as those that could cause exceptional damage to property or those conducted in a "particularly offensive manner."  Neither of those situations applied in Arnold's case, he said. He also pointed to a decision by the Fourth Circuit Court of Appeals upholding the warrant-less search of a vehicle that was entering the U.S. from Canada.

As a result, the Fourth Circuit Court held that warrant-less searches were OK because requiring otherwise would have imposed an "unworkable standard" on customs officials. "We are persuaded by the analysis of our sister circuit," O'Scannlain wrote.

The case involves a man named Michael Arnold, who was arrested in 2005 on charges of transporting child pornography on his laptop. According to a description of the case in court records, Arnold was returning home from a three-week vacation in the Philippines in July 2005, when he was pulled aside for secondary customs screening at Los Angeles International Airport.

A customs officer who was inspecting Arnold's luggage asked him to start his computer and had it examined by colleagues who found several images of what they believed were child pornography on the computer and in several storage devices that Arnold was carrying with him.

A grand jury later charged Arnold with knowingly transporting child pornography in interstate and foreign commerce, and for knowingly possessing a hard drive and CD-ROMs containing more than one image of child pornography.

Arnold filed a motion asking for the evidence against him to be suppressed, arguing that the search of his computer and storage devices by customs officers had been unreasonable and unwarranted. The district court ruled in his favor on the grounds that reasonable suspicion indeed needed to have existed for customs officials to have conducted the search.

The government filed an appeal against that decision essentially arguing that reasonable suspicion standards did not apply to searches at the border.

In concurring with that view, the Ninth Circuit yesterday rejected Arnold's arguments that reasonable suspicion was needed to search a computer...

...the Fourth Circuit Court held that warrant-less searches were OK because requiring otherwise would have imposed an "unworkable standard" on customs officials.

the Fourth Circuit Court of Appeals upholding the warrant-less search of a vehicle that was entering the U.S. from Canada.

..the Fourth Circuit Court held that warrant-less searches were OK because requiring otherwise would have imposed an "unworkable standard" on customs officials. "We are persuaded by the analysis of our sister circuit," O'Scannlain wrote.

CBP Authority to Search

A U.S. Customs and Border Protection (CBP) officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, "All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer."

CBP officers may, unfortunately, inconvenience law-abiding citizens in order to detect those involved in illicit activities.

Although CBP does use information from various systems and specific techniques for selecting passengers for targeted examinations, a component of our risk management practices is the use of a completely random referral for a percentage of travelers.

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Border search exception

Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the "border-search" exception.[47] Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to Customs' plenary search authority. However, searches that intrude upon traveler's personal dignity and privacy interests, including strip and body cavity searches must be supported by 'reasonable suspicion.'

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And on July 17, 2005, an individual arrived at Los Angeles International Airport on a flight from Manila, Philippines. He was selected for a secondary examination and exhibited nervous behavior when questioned about the purpose of travel to Manila. After failing to provide consistent answers about his occupation and purpose of travel, a declaration was obtained and the individual’s luggage was inspected. Upon inspection of his laptop and CDs found in the individual’s luggage, officers found images of child pornography.

Similar to our efforts with respect to vehicles, suitcases, backpacks, hard-copy documents, and conveyances, our examinations of laptops and other digital devices are consistent with longstanding constitutional authorities at the border...

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...the Supreme Court has called for a reasonable-suspicion standard for certain types of border searches such as those that could cause exceptional damage to property or those conducted in a "particularly offensive manner."  Neither of those situations applied in Arnold's case...

In February, the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF), two San Francisco-based civil liberties groups, filed a lawsuit in California citing complaints from travelers of excessive screenings at border entry points, including inspections of the data on laptops, cell phones and other electronic devices.

The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

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