Customs agents seizing laptops - no warrants are needed

Lawyer: 'They don’t need probable cause to perform these searches under the current law. They can do it without suspicion or without really revealing their motivations.'
Written by Richard Koman, Contributor

Business travelers are increasingly having their laptops' content perused - and sometimes even confiscated - by US Customs agents at the border, The New York Times reports.

Although much of the evidence for the confiscations remains anecdotal, it’s a hot topic this week among more than 1,000 corporate travel managers and travel industry officials meeting in Barcelona at a conference of the Association of Corporate Travel Executives.

“One member who responded to our survey said she has been waiting for a year to get her laptop and its contents back,” said Susan Gurley, the group’s executive director. “She said it was randomly seized. And since she hasn’t been arrested, I assume she was just a regular business traveler, not a criminal.”

Agents have broad leeway to do as they please with travelers' computers. “They don’t need probable cause to perform these searches under the current law. They can do it without suspicion or without really revealing their motivations,” said Tim Kane, a Washington lawyer who is researching the matter for corporate clients.

And what about the Fourth Amendment, which requires a search warrant before inspection or seizure?

Laptops may be scrutinized and subject to a “forensic analysis” under the so-called border search exemption, which allows searches of people entering the United States and their possessions “without probable cause, reasonable suspicion or a warrant,” a federal court ruled in July.

While there may be need to inspect laptops, it doesn't necessarily follow that complete agent discretion is the best idea. “[I]t appears from information we have that agents have a lot of discretion in doing these searches, and that there’s a whole spectrum of reasons for doing them,” Gurley said.

“We need to be able to better inform our business travelers what the processes are if their laptops and data are seized — what happens to it, how do you get it back,” Ms. Gurley said.

She added: “The issue is what happens to the proprietary business information that might be on a laptop. Is information copied? Is it returned? We understand that the U.S. government needs to protect its borders. But we want to have transparent information so business travelers know what to do. Should they leave business proprietary information at home?”

There is at least some split of authority on the legality of the Customs seizures. A federal court in California said the searches were a serious invasion of privacy.

“People keep all sorts of personal information on computers,” the court ruling said, citing diaries, personal letters, financial records, lawyers’ confidential client information and reporters’ notes on confidential sources. That court ruled, in that specific case, that “the correct standard requires that any border search of the information stored on a person’s electronic storage device be based, at a minimum, on a reasonable suspicion.”

The development may be just one more reason to keep sensitive business data on servers instead of hard drives.

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