The Ninth Circuit, in a decision announced this summer, has approved forensic searches of laptop computers at the border, even when the laptop's owner spent no time outside the airport in the foreign country and was under no suspicion of possessing foreign contraband.
The case involved a man, Stuart Romm, suspected of possession of child pornography, all of which he downloaded in the US. Romm had attempted to fly into Canada, but was detained at the British Columbia airport after Canadian immigration officials discovered that he had a criminal history of sexual exploitation of minors. Immigration officers asked to inspect his laptop computer, and discovered several child pornography websites in the browser history.
Needless to say, the Canadian immigration service declined to admit Romm into the country, and placed him in detention until the next flight back to the U.S. They also notified U.S. Customs in Seattle that Romm possibly had illegal images on his computer.
Return to the States
Once back in Seattle, two agents from Immigration and Customs Enforcement (ICE) interviewed Romm and told him that they would need to conduct a forensic analysis of the contents of his laptop that night. Romm agreed, and the search uncovered several images of child pornography that Romm had deleted from the laptop's hard drive.
At trial, Romm moved to block the results of the search, but the court denied the motion. Romm was later convicted of possessing and receiving child pornography.
The Border Search Exception to the Warrant Requirement
On appeal, Romm objected to the search on constitutional grounds. The court held that the inspection fell within the border search exception to the warrant requirement, which allows the government to conduct routine searches at the border without probable cause, reasonable suspicion, or a warrant. Since international airports are the "functional equivalent" of a border, the court stated, the search of Romm's computer was within the exception.
Romm argued that, since he had never technically crossed over the border into Canada, the search wasn't a border search, but rather a domestic search with the usual Fourth Amendment requirements. The court rejected this argument, however, pointing to authority that held that individuals who failed to reach their destination country had no right to freely reenter the US. Thus, since Romm had left the United States, he and his possessions were subject to search upon arrival at the US border.
The court also refused to create an "official restraint" exception to border searches. Romm averred that, since he was detained by the Canadian immigration service for the entire time he was outside the border, he could not have obtained any foreign contraband that was subject to border search. The court ruled that the presence of foreign contraband was irrelevant, since no suspicion of possession of foreign contraband is necessary under the border search doctrine. In fact, no actual suspicion of any kind is required to conduct a border search.
Thus, in the end, the laptop was open to forensic inspection as part of a routine border search. Romm did raise an argument that the search was not routine, but the court refused to weigh in on the issue since Romm only raised the point in his reply brief. Even if the court had addressed the matter, it likely would have ruled that the forensic search, even though it involved more intrusion than the typical object search, would still fall within the border search doctrine since it required no force, posed no risk to Romm or to the public, and would not harm the computer.
This decision has important implications for attorneys who carry laptops containing confidential information across borders. While it is unlikely that traveling lawyers will be stopped in order to have a forensic examination conducted on their laptop, this decision illustrates that such a search could occur without a warrant and without any justification or suspicion. Any sensitive material contained on the laptop would be easily accessible by the ICE, unless the data was encrypted.
While most of this information would likely be inadmissible in any civil or criminal proceeding under the attorney-client communication or work product privileges, it is nonetheless unnerving to imagine client information exposed to the U.S. government without any need for a warrant. Attorneys who travel extensively outside the country may wish to consider leaving their laptops at home and using computers abroad. There are a number of remote-computing solutions that could enable this, and many firms allow their attorneys to tunnel into their networks via Virtual Private Networking.
Visit FindLaw's Networking and Storage page to learn more about products and solutions that can help build a remotely accessible network.