Border Searches and Your Laptop

I have not spent too much of my career on passenger issues. They come up now and then, but for the most part, they get resolved at the border when the Inspector seizes the offending Cuban cigars, Jamaican herb, or dried rhino horn. The most common passenger issue we see is the failure to declare $10,000 or more in currency coming or going. People call a lawyer when cash is being seized.

Stuart Romm, on the other hand, called a lawyer. Mr. Romm spent some time surfing the internet from his Las Vegas hotel before heading to British Columbia which, unfortunately for him, is across a border. Another unfortunate fact was that Mr. Romm has a criminal record involving the exploitation of a child by means of a computer. Not that this is relevant, but he was also the subject of an indefinite suspension from the practice of law by the Massachusetts bar.

The Canada Border Services Agent asked Romm to turn on his computer and examined it. CBSA discovered that Romm's computer internet history showed visits to child pornography sites. Romm was denied entry to Canada and sent back to Seattle.

In Seattle, Immigration and Customs Enforcement Agents interviewed Romm. ICE also conducted a preliminary forensic analysis of the laptop and discovered a number of deleted images of child pornography. More detailed forensic analysis showed additional images of child pornography had been deleted from Romm's internet cache. In all, 42 images from his hard drive ended up being displayed to the jury. Which, I bet, was fairly uncomfortable for all involved.

Romm's first argument, and the only one relevant here, was that the forensic search violated his fourth amendment rights to be free of unreasonable search and seizure. Sorry, Stuart, that does not work.

The courts have long recognized an exception to the fourth amendment for border searches (including international airports). Under this exception, Customs may conduct a routine search of anyone (or everyone) entering the United States. The government has no need ofr tricky things like probable cause, reasonable suspicion, or a warrant. Romm did have one interesting fact in his favor: he never actually got into Canada. The Ninth Circuit Court of Appeals did not buy it. Rather, the Court held that he physically crossed into Canada even if he was not legally admitted into Canada, and that was enough.

Romm also argued that the border search exception should be limited to searches for contraband acquired while abroad. Since Romm was never able to acquire anything in Canada due to his "official restraint," he reasoned, the search was illegal. Again, the Court disagreed and used the oft quoted language "searches made at the border . . . are reasonable simply by virtue of the fact that they occur at the border." For those who care, that is from U.S. v. Ramsey, 431 U.S. 606, 616 (1977).

And that is really it in a nutshell. When you cross the border, you do not have the fourth amendment rights you might expect when, say, the police knock on your door. You cannot decline consent to the search and make the Inspector go get a warrant. You need to turn over your bag and your laptop. There are some outer limits to the Inspector's authority, mostly involving the length of detention. You can read a little about that here. But, really, do you want to be the next test case?

The Romm opinion is here.

Next: How not to pass the customhouse brokers exam.


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