INTERNET LAW - Laptops Content may be Subject to Inspection upon Entering the United States

Martha L. Arias, IBLS Director.
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A recent and controversial decision by the 9th Circuit Court of Appeals in California held that the United States (U.S.) Customs Officials may seize and search travelers’ laptops upon entering the U.S. even in the absence of search warrant or probable cause.

The traditional 4th Amendment protection offered by the U.S. Constitution does not apply to airport searches, held this Court. "The government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant," the court stated, citing the U.S. Supreme Court’s 1985 ruling in United States v. Montoya de Hernandez, 473 U.S. 531.”

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A recent and controversial decision by the 9th Circuit Court of Appeals in California held that the United States (U.S.) Customs Officials may seize and search travelers' laptops upon entering the U.S. even in the absence of search warrant or probable cause.

 

The traditional 4th Amendment protection offered by the U.S. Constitution does not apply to airport searches, held this Court.  "The government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant," the court stated, citing the U.S. Supreme Court's 1985 ruling in United States v. Montoya de Hernandez, 473 U.S. 531."  

 

This decision was reached in U.S. v. Romm, No. 04-10648, a child pornography case.   Romm, the defendant, upon entering the U.S. by the Seattle International Airport, after a trip abroad, was inspected by the U.S. Customs Officers.  The Customs Officers seized and searched Romm's laptop, even though Romm had no been issued a search warrant or had any probable cause of been committing a crime.  After a careful search, the Customs Officers found that Romm had recently visited some child pornography websites and this evidence was used in Court in the State's case against him.  Romm had ‘deleted' these websites from his browser but with technology aid, the Customs Officers could see the child pornography websites recorded in Romm's hard drive.  Romm was on probation ordered by a Florida Court after charges of promoting children sexual performance and the California 9th Circuit Court said he had violated his probation terms by visiting these websites.          

 

Some experts argue that this case represents judicial approval of a far-beyond invasion of privacy, even though its facts do not provide the best example of an innocent defendant.  Commenting on Romm's case, Shaun Martin, a Law professor at the University of San Diego, said: "It is one thing to turn on your computer in the airport to make sure it is not a bomb. It is another thing for customs officials to turn on your computer and to read everything you ever wrote and to look at everything you ever downloaded." 

 

This California Court decision has raised many questions about how corporate and confidential information stored in executives' laptops may be treated during these possible Customs Officers' searches and how long a person must wait until his/her laptop is searched if special technology needs to be used.   Certainly, future cases will answer these questions. 

Martha L. Arias, IBLS Director.

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