10/2/2008

The U.S. Customs and Border Protection (CBP) issued a statement regarding CBP policy on border searches of information. The search for information extends to documents and electronic devices. In addition to providing search procedures, CBP asserted that the inclusion of information in a border search is permissible without individualized suspicion of the person seeking to cross the border. 

Critics argue this policy runs contrary to the U.S. Constitutional protections against searches and seizures. However, the Ninth Circuit Court of Appeals recently held that the search of one's laptop at the border is permitted without reasonable suspicion.

In the case of United States v. Arnold CBP, officers searched, without suspicion of illegal activity, the laptop of a traveler and discovered images of what appeared to be child pornography. The laptop was seized and a warrant obtained. The individual was charged with various crimes related to transporting and possessing child pornography.

The defendant / traveler filed a motion to suppress the evidence, arguing that the search was conducted without reasonable suspicion, as normally required under the U.S. Constitution. The court analyzed in detail whether the situation fit within certain exceptions to the need for reasonable suspicion when searches are conducted at the border. The court found that this circumstance fit within the border search exception to the need for reasonable suspicion and therefore was permissible.

In a statement before the Senate Committee on the Judiciary Constitution Subcommittee, CBP Deputy Commissioner Jayson Ahern said that laptop searches are essential to prevent terrorist organizations from transporting information over the border. 

In a Leadership Journal website entry, Deputy Commissioner Ahern defended the practice, citing instances of laptop searches that uncovered information about cyanide, nuclear material, improvised explosive devices (IEDs), and visa fraud information. Without laptop searches, Deputy Commissioner Ahern argues, these threats to national security would have disseminated within American borders.