Tuesday, November 30, 2010

More on TSA Searches of the Contents of Computers. It Isn’t Done, But Is It Permisssible?

I have been trying to do some follow-up on whether the TSA can search the contents of computers. Here is the previous post.

I am not aware that the TSA conducts any searches of the contents of computers, cell phones, etc . . . The TSA blog earlier this year explained that Customs may do this, but not TSA:


Can TSA Copy Your Laptop Hard Drive and Search Your Files?

I read comments every now and then about how TSA officers at checkpoint and baggage locations can search the files on your laptop and can also confiscate your computer and copy your hard drive.

This is not true. In fact, we blogged about it back in February of 2008.

Our officers might visually inspect your laptop and perform an explosives trace detection test, but that's it. Our officers don't even turn computers on during inspection.

So where are the reports coming from? They're coming from people who have had their laptops searched by U.S. Customs and Border Protection (CBP). For more details on CBP's mission, check out this post from the recently retired Deputy Commissioner at U.S. Customs and Border Protection, Jayson Ahern.

So where is the confusion taking place? Well, many passengers often confuse CBP with TSA. Why? They have uniforms with the Department of Homeland Security patch and some people automatically assume they are TSA officers since they're working in an airport capacity. TSA and CBP officers have different uniforms. The CBP uniform is navy blue, while the TSA uniform is more of a royal blue. You will only interact with CBP when you're coming into the country.


Blogger Bob

TSA Blog Team

The blog post does not answer the important legal question: could the TSA do what CBP does, if it wanted to? (Here are some quick prior thoughts on customs searches.)

In general, TSA searches are permissible under the administrative search doctrine. The TSA role of preventing terrorist attacks on airplanes is a significant governmental interest, and the procedures are designed to promote that interest. In addition, passengers consent to the search when they choose to fly commercially. Once the search is conducted, the Fourth Amendment does not prohibit the government from using as evidence any other contraband discovered within the permissible scope of the search – for example, cocaine in the pocket of a passenger discovered during a pat-down.

A recent case from Hawaii suggested that there may be a limit, however. U.S. v. McCarty, 672 F. Supp. 2d 1085 (D. Hawaii 2009).

In McCarty, the defendant checked two pieces of luggage for a flight to Honolulu. The TSA screening of luggage noticed a "dense object," and the employees conducted a manual inspection of the luggage. The employees pulled out a laptop, and an envelope. (The employees testified that "some of its contents fell out of the bag and onto the table," although the testimony was later found to be "inconsistent" by the court.) The envelope included photographs of nude children. The TSA employees called the police. An officer reviewed the photographs and arrested the defendant for promotion of child abuse.

The court concluded that the search of the envelope exceeded the TSA authority:

As an initial matter, the court recognizes that . . . TSA employees could legally search the . . . bag for explosives and weapons. In fact, it was for precisely this purpose that [the employee] began her search -- the x-ray machine had alarmed on the laptop and a dense item and [the employee] was trained to clear the bag by identifying the items causing the alarm. The court further recognizes that [the employee's] inadvertent discovery of some of the photographs did not itself extend the search beyond its valid purpose . . .

The court cannot conclude, however, that the search of the . . . bag was limited to ensuring that it did not pose a safety risk. Rather, the testimony evidences that the TSA employees, at some point, clearly exceeded the scope of their administrative search and began to search for evidence of child pornography. And the government has failed to prove that, during the course of the lawful administrative search, TSA employees discovered evidence supporting a finding of probable cause that Defendant possessed child pornography.

The key to the decision is that, at some point, the TSA employees shifted focus from detecting possible terrorism to detecting other crimes. At that point, the administrative search exception no longer applied, and the search violated the Fourth Amendment. (The decision discusses a possible search for "sheet explosives," which I won't address.)

However, this suggests that in the future, a search of the contents of an envelope or a computer could be justified by a TSA belief that that contents of the envelope or the computer were related to preventing terrorism. For example, if the TSA, based on experience, had a belief that possible terrorists often communicate through e-mail or other electronic devices, then this belief could be used to justify the search of the contents of a computer.

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