The Association of Corporate Travel Executives, Alexandria, Va., is warning its members that anyone bringing a laptop across the U.S. border could risk having the laptop seized or its contents searched by U.S. Customs and Border Protection Officers.
ACTE was responding to a series of U.S. court rulings, one of which, U.S. v. Romm, holds that search of a laptop is permissible without probable cause under the border search doctrine. The case was decided in the 9th U.S. Circuit Court of Appeals in July of this year.
“The information that U.S. government officials have the right to examine, download, or even seize business travelers’ laptops came as a surprise to the majority of our members,” said ACTE’s executive director, Susan Gurley, in a press release. “The common belief is that there is a right to privacy of one’s computer. Yet it appears that there is none.”
Do CBP officers randomly search laptops at border crossings? “They certainly have that authority,” said Christopher Wolf, an attorney for Proskauer Rose LLP, which has offices in the United States and Europe, and which has issued a client alert on the topic. “Whether or not they will use that right to randomly search computers is an open question. As a practical matter, we advise our clients that it’s not very wise to carry sensitive data on laptops.”
The CBP doesn’t intend to subject travelers to “unwarranted scrutiny,” said a CBP spokesperson. “However, unless exempt, all travelers entering the U.S., including U.S. citizens, are required to participate in CBP processing. Laptop computers may be subject to detention for violation of criminal law if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography, or other criminal activity."
The case law concerning laptop searches and seizures has conflicting interpretations. According to a case decided last month by a U.S. district judge in the Central District of California, border officials must have reasonable suspicion under the Fourth Amendment to search laptops at border crossings. But in a case decided last year, the 4th U.S. Circuit Court ruled that a computer search did not violate First Amendment rights and was therefore allowable.
“Until and unless the Supreme Court rules [on the issue of laptop searches], there could be disagreements in courts all across the country,” said Wolf. “It’s the kind of case they [the Supreme Court] would normally like to take and resolve.”
In the meantime, Wolf says his firm’s clients would “love to have more clarity from the government on what the guidelines are--and with the absence of that, they should be carrying a minimum of data on their laptops.”