Can the TSA Search The Contents of Computers

Domestic TSA practices have received a lot of attention recently.

But a more far reaching issue may be the ability of border agents to search the contents of computers and smartphones without a warrant.

I wrote about this issue previously. But a recent case, United States v. Rogozin again brought it to my attention.

In this case, the defendant was driving into the United States. The customs officer thought the defendant was acting suspicious, and referred him for a secondary screening. The agents searched the vehicle, as well as the contents of a digital camera, computer, video camera and cell phone. All of the devices contained photos of small children in sexually suggestive positions. The defendant was released and the government conducted a forensic inspection of the laptop at the ICE office. Based on finding child pornography during this inspection, the officers applied for a warrant to search the computer.

Routine border searches for contraband are permissible under the Fourth Amendment without reasonable suspicion or probable cause. The court refused to suppress the evidence from the laptop because the defendant conduct at the border stop "were sufficient to create reasonable suspicion in the mind of [the] inspector . . . which would justify examining the laptop during the secondary inspection." The court did, however, suppress the evidence from the other devices, reasoning that the government held them for too long without seeking a warrant.

This opinion does not really address the core Fourth Amendment issue: whether a border search permits agents to search the contents of an electronic device. In this case, while the defendant may have acted suspiciously, there does not appear to be evidence to support the belief that contraband was contained on his electronic devices.

This will be an important issue – as I suspect that the TSA at some point will claim the authority to search through the contents of computers and cell phones, as well.