Working Paper No. 08-58:
Run for the Border: Laptop Searches and the Fourth Amendment

Author(s):

Nathan Sales

Date Posted: October 2008

Availability:
Abstract (below)
Full text (original)   PDF file
Full text (most recent) on SSRN

Abstract:

Should customs officers be able to search laptop computers at the border in the same way they inspect suitcases and packages?  This article argues that, in general, suspicionless border searches of laptops and other electronic storage devices are permissible under the Fourth Amendment.  It begins by surveying the competing interests that are implicated by laptop searches at the border, including the government's need to combat terrorism and child exploitation, as well as travelers' interests in privacy and free expression.  Next, the article discusses the Supreme Court's border-search doctrine.  "Non-routine" border searches (e.g., invasive searches of the body) are subject to the reasonable-suspicion standard, but "routine" searches (e.g., searches of property) need not be based on any individualized suspicion at all.  The article then considers how the border-search doctrine might apply to laptops.  Lower courts generally hold that customs can inspect laptops without reasonable suspicion, and this consensus is largely correct.  Laptops differ from other kinds of property:  They contain a greater volume of material, the data they store is intensely personal, and digital searches can leave a permanent copy of the data in the government's hands.  But those differences generally do not justify a special exception to the border-search doctrine.  In fact, laptop searches have the potential to be less, not more, intrusive than traditional border inspections of physical objects.  Finally, the article discusses possible legislative or administrative reforms that might better balance travelers' interests against the government's needs.  It might be appropriate to protect laptop owners' privacy interests at the border, not through traditional "collection limits" (which restrict the government's ability to gather information in the first place), but with "use limits" (which restrict the government's ability to share or otherwise use the information it does gather).