Posted by: Rachel Wolf
Imagine you are coming home from a vacation abroad (somewhere nice, Jamaica maybe?) and you are waiting to get through the customs checkpoint at the airport. Customs agents choose to search you belongings, and start rifling through your things. You, like most Americans tend to be alright with this, especially since 9/11, and prefer to be “safe rather than sorry.” But then, the agent starts turning on your computer and looking at your files, pictures, and documents. Wait, what? Is this allowed? Can they really do this?
In the Fourth Amendment realm, the Supreme Court has had no problem allowing searches at the border without a warrant or even particularized suspicion. While the Court is normally willing to provide some type of justification for an exception to a general rule, in this case it has done little more than explain that border searches are beyond the scope of normal law enforcement and serve a “special purpose:” preventing contraband from being smuggled into the United States. United States v. Johnson 991 F.2d 1287 (7th Cir. 1993).
These border searches include those of personal belongings, not just vehicles, justified for the same reason above, in addition to the reasoning that people experience a decreased expectation of privacy at the border. Even containers, including suitcases, may be searched without suspicion.
So, is a computer a “container” under Fourth Amendment analysis? According to multiple circuit courts, the answer is yes. In 2005, the Fourth Circuit Court determined in United States v. Ickes 393 F.3d 501 (4th Cir. 2005)., that in a routine border search, a computer may be searched as a “container.” This search includes turning on the computer and opening files, well beyond ensuring that the computer is actually a computer an not a smuggling device or a bomb. The border agents in Ickes discovered child pornography on the defendant’s laptop. The court determined that the search was not any more intrusive than any other border search. It also justified the search as one of national security concern, and determined that finding terrorist communication in the computer would be of vital importance to border agents.
This ruling appears to expand the Supreme Court’s rationale for border searches beyond preventing contraband from entering the country. Unlike traditional contraband being carried in a vehicle (usually weapons or drugs), content carried in a computer is not “contained” like it is in a normal suitcase or box. Content on a computer can easily be distributed to anyone, anywhere in the world instantly. Just because contraband is caught on one computer, does not mean that it could not be sent through an email or found on the internet, which has no real borders. Thanks to the nature of the internet’s open culture and easy accessibility, border agents cannot simply prevent the entrance of content available on a computer by finding it on one person’s computer in a customs search. This content could be sent from anywhere in the world, and no customs agent could prevent it from piercing our border.
Normal “law enforcement” checkpoint searches are usually not justifiable under Supreme Court precedent, and the Court will only uphold them when there is a specific purpose beyond crime prevention. Though rules at the border tend to be looser, it does not make sense that computer border searches are anything more than typical “law enforcement” without the burden of a warrant. A customs agent searching the picture files in a computer is extremely unlikely to discover national security issues or terrorist communications. They are much more likely, however, to find child pornography if it is there, which is a general crime that does not affect national security. Nor is it contraband that can be stopped at the physical border because the same pictures can be emailed from anywhere in the world.
Perhaps when and if the Supreme Court weighs in on this issue, it will determine that computer border searches are not justified under the contraband or national security rationales. Given the current climate of over protection when it comes to our borders, it is unlikely that privacy interests will outweigh national security however. This will likely be so even though national security interests will be served so insignificantly.
So the next time you plan on crossing through a border entry with your computer, even if you feel like the challenger in United States v. Arnold 533 F.3d 1003 (9th Cir. 2008) that your computer is akin to your home or the “human mind,” then prepare for your mind to be thoroughly searched.