Debate Over Laptop Seizures Heats Up

The question as to whether border agents and investigators have the right to snoop through travelers' laptops as they enter the United States is stirring up even more controversy.

The U.S. 9th Circuit Court of Appeals is currently hearing the case, brought by a man the government says carried images of child pornography as he returned from a trip to the Philippines. Former Anaheim, Calif., junior high school math teacher Michael Timothy Arnold claims that agents violated his Fourth Amendment rights by viewing the contents of a laptop, CDs, and a memory stick that he carried through the Los Angeles International Airport in 2005.

A lower court, the U.S. District Court for the Central District of California, found last year that agents must have reasonable suspicion to search electronic devices and said they did not meet that threshold in Arnold's case. The government appealed the decision and is expected to present its argument by the end of this month.

Under current federal law, agents are allowed to search diaries and other personal material without cause at U.S. borders. But the district court last year stated that the contents of a laptop are even more personal and that searching them equates to "intrusions into the mind." The U.S. Department of Justice, however, claims that laptops are no different than other containers and luggage. Justice states that agents must have the power to search them in order to thwart criminal activity and protect national security.

The Association of Corporate Travel Executives disagrees. It filed an amicus brief in the case this week.

"Over the past several years, U.S. customs agents have been searching and even seizing travelers' laptops when they are entering or leaving the country if the traveler fits a profile, appears on a government watch list, or is chosen for a random inspection," the group said in a joint statement with the Electronic Frontier Foundation. "The Supreme Court has ruled that customs and border agents may perform routine searches at the border without a warrant or even reasonable suspicion, but EFF and ACTE argue that inspections of computers are far more invasive than flipping through a briefcase."

The groups pointed out that laptops can contain banking information, e-mail about health concerns, and other private material.

"In balancing this right against the government's interest in protecting our borders, the court should recognize not only the unique nature of these searches but also the wide-ranging implications of the government's arguments," the groups wrote in the brief. "Indeed, under the government's reasoning, border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry, and other electronic device carried across our border by every traveler, American or foreign. The government could then store and search all of this information without justification and without oversight from the courts."

The ACTE warned its members last fall to be cautious about carrying proprietary information across U.S. borders because of possible searches, which could impact international corporate privacy. Eighty-six percent of business travel executives surveyed by the ACTE said that court decisions allowing border agents to examine and download laptop contents was reason enough to limit proprietary information normally stored on laptops.

ACTE executive director Susan Gurley said then that most members were surprised that agents had the authority to review and seize laptops without cause. Thirty-six percent of respondents in that survey said their companies lacked policies limiting the proprietary information carried on travelers' computers. Thirty-five percent said they do. Among companies with such policies, the major concern was loss or theft of the computer.

One percent of respondents surveyed by ACTE said that either they or someone they know had a laptop confiscated by authorities. Ninety-four percent were unaware border agents could confiscate and store the machines for days, weeks, or indefinitely, ACTE said.