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Laptop searches at the US border implicate legitimate Fourth Amendment concerns

John Wesley Hall, Jr. [Former President, National Association of Criminal Defense Lawyers]: "This fiscal year, through August 11, 2009, US Customs and Border Protection (CBP) tells us that there were about 1,000 laptop computer searches, only 46 of which were in-depth. This out of 221 million border crossings. It simply is not possible for CBP to widely search laptop computers at the border. Too many people are lined up coming in to search everybody intensively, let alone their computers and electronic media too.

CBP is searching laptop computers, a least in the litigated cases that I have seen, only for child pornography. And they at least appear to be limiting these searches to those whom they have reasonable suspicion to believe are potentially transporting child pornography into the country so as to target their resources. But what happens when these searches begin to occur based on political speech because one opposes a government position or happens to disagree with the opinion of the customs agent making the decision ("the discretion of the officer in the field")?

All the case law to this point is clear that reasonable suspicion is not required for a laptop search. No case has held that it is, and I don't think that any will. That should not be surprising considering the Supreme Court held in 2004 in United States v. Flores-Montano that the reasonable suspicion requirement is limited to searches of the person and not personal belongings, and in 1971 that pictures and motion pictures could be examined at customs in United States v. Thirty-Seven Photographs. Thirty-Seven Photographs predated the widespread use of truly portable laptop computers by more than a decade.

Can the reasonable suspicion standard of the border search law of searches of the person be readily imported into computer searches? Not likely. United States v. Montoya De Hernandez from 1985 left open the question as to whether reasonable suspicion was required for intensive border searches of the person, including strip and body cavity searches (n. 4: "It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.").

The technology did not exist until the last four years, but what about backscatter technology that permits a virtual strip search at the border? Virtually all persons subjected to it have no idea that it shows what one looks like under his or her clothes. It is not a mere x-ray. Should something that intrusive require reasonable suspicion? It doesn't right now at the airports that use it for standard airport security - at least not yet because nobody has litigated it of which I am aware. That should prove to be an interesting case. But then again, it might not because the targets of the search are simply not going to be embarrassed by a virtual strip search that they don't even know is happening.

But should Fourth Amendment protections be premised on what the target knows is happening? No, because you have a right to be free from an unwarranted search of your house, belongings, or conversations when you don't know that it is happening. It is what the government is doing to your privacy that tips the balance in favor of the citizen, not what the target knows at the time."

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