Wednesday, November 17, 2010

NYT Editorial: Searching Your Laptop

The New York Times recently published an editorial on laptop searches by customs officials. It is worth a read.

The editorial highlights the fact that border agents are permitted under the Fourth Amendment to conduct searches of the contents of laptops. while no cases have been decided on the issue, this also likely includes the ability to search the contents of smartphones, and may even permit the search of documents and e-mail stored on external servers that could be accessed by these devices. This has been permitted because persons entering the country have a diminished expectation of privacy, and courts have been reluctant to distinguish between containers potentially holding physical materials, and containers holding electronic materials.

The editorial recognizes that "There is . . . a big difference between government agents scanning items for explosives or looking through a suitcase full of clothing, and searching through the hard drive of a laptop computer containing work papers, financial records, e-mail messages and Web site visits." The editorial also refers to a Ninth Circuit ruling upholding the ability of border agents to search computers as "disappointing," and calls for legislative action.

The Fourth Amendment issue is whether traditional Fourth Amendment doctrines, like the doctrine permitting virtually unlimited border searches, or the doctrine permitting the search of the contents of containers incident to an arrest, apply to modern electronic devices. In applying these old doctrines, courts often draw analogies to physical objects, such as footlockers and file cabinets. However, going forward, the hope is that courts begin to recognize the differences between the physical objects that people held twenty or more years ago, and modern handheld electronic devices.

The key, I believe, is that computers, hard drives, flash drives, and cell phones have a unique ability to hold vast amounts of diverse personal information. As I have noted elsewhere on this blog (here and here, for example) and in a paper I am publishing soon, the better course is for courts to review whether an examination of the contents of the device is reasonably likely to lead to the discovery of the type of intimate details about a person. If the answer is yes, then a warrant should be required before law enforcement examines the contents of an electronic device.

Applying this to the border searches of laptops noted by the New York Times editorial: searches for physical evidence should continue to be permissible as before; however, if the examination of the contents of a person's e-mails, text messages, documents, and photographs could provide an observer with potentially unlimited information about the device's owner, including personal, medical, or financial information or political or religious views, then the warrant requirement of the Fourth Amendment applies.

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