Travelers' Laptops May be Detained at US Border

In a previous issue of E-TIPS®, "US Appeals Court Approves Customs Officer's Search of Laptop Computer" (Vol 6, No 22, May 7, 2008), we reported that the US Court of Appeals for the Ninth Circuit found that US customs officers do not need reasonable suspicion to search the files on a person's computer or personal electronic storage device at the border. Following this decision, the US Department of Homeland Security released an advisory dated July 16, 2008 (Policy) entitled Policy Regarding Border Searches of Computers stating that US custom officers may detain original documents or copies and also may retain electronic devices for a reasonable period of time to perform a thorough border search. Customs officers are also permitted to outsource to private entities the services for any language translation, data decryption or other issues requiring "subject matter assistance". When a review is completed and if probable cause to seize the information does not exist, any copies of the data must be destroyed and copies sent to private entities must also be returned. However, the Policy does not provide a time limitation on the holding of the materials nor does the Policy specify any limitation on authorities keeping written notes or reports about the materials. Although searches and seizures without probable cause have traditionally taken place at the US/Canada border, they were in the context of physical searches of luggage. With the advent of portable electronic devices such as laptops, memory sticks, PDAs and cell phones, debate is emerging whether Congress should limit searches of electronic devices to circumstances in which there is an element of "probable cause" to search. The debate has been chronicled and continued in the editorial pages of several newspapers on both sides of the US-Canada border and emerged most recently on August 11, 2008 in The Globe and Mail (at http://www.theglobeandmail.com/servlet/story/RTGAM.20080811.wxeborders11/BNStory/Technology/). For a news article in the Washington Post, see: http://tinyurl.com/5cn2qm For a copy of the US Customs Policy, visit: http://tinyurl.com/5wr7jw Summary by: Oren Weichenberg