Laptop computers and other personal electronic devices such as cell phones, I-phones and Blackberries are increasingly attractive to government agents because of the vast amounts of data users store on them. Unfortunately, in the absence of federal law protecting them from government searches without warrants or even reasonable suspicion of wrongdoing, federal courts are permitting such warrantless searches.
In a recent case out of the Southern District of Texas, a US citizen flying back into the United States from Bogota, Colombia, had his personal laptop computer seized and subjected to a warrantless search by Customs agents at George W. Bush airport near Houston. The agents found what they were looking for — evidence of child pornography. Their lack of surprise was the result of having previously identified the arrestee as a suspected child pornographer.
Divorcing our analysis from the distasteful nature of the offense — child pornography — two aspects of this case are particularly troubling.
First, why didn’t the government agents obtain a search warrant for the computer? If the agents already suspected this individual of trafficking in child porn, why didn’t they simply go to a federal magistrate and secure a search warrant? Second, and more troubling, is the almost cavalier manner in which the US District Court judge in Houston dismissed the suspect’s challenge to the airport search.
As to the first question, perhaps the reason the federal agents did not obtain a search warrant was because they did not have sufficient evidence to secure one (that is, probable cause to believe the suspect had violated the law and that his computer likely contained evidence thereof); and that is was then simply easier to wait until the suspect travelled abroad and reentered the United States, at which point they could argue the government has plenary power to essentially search whoever and for whatever it wants. It is also possible that the government did have sufficient probable cause to have secured a search warrant (which is a relatively easy procedure), but preferred to proceed via a “border search” in order to establish further precedent for such warrantless searches. In this instance, things turned out rather well for the government.
The manner in which the government proceeded turned out to be effective because the federal judge to whom the motion to suppress evidence of the warrantless laptop search was presented, concluded that such a search was simply not sufficiently intrusive to the suspect’s “body” or damaging to the computer. The judge also concluded that an extensive search of one’s personal laptop is not sufficiently violative of a person’s privacy or dignity as to require a warrant or a greater degree of suspicion by the government before undetaking a search of data stored on a laptop computer.
Until this and similar decisions are overturned by a higher court, or unless the Congress passess legislation establishing at least minimal standards for such searches by government agents at ports of entry into the United States — and neither scenario appears likely in the short term, at least — laptops and other electronic devices that store data, are subject to warrantless search any time a person enters the U.S. by any means (train, boat, automobile, plane, or on foot). No Fourth Amendment protection available. Pack accordingly.