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Border searches of laptops may be conducted off-site for cause, court rules

Computer searches OK at backup facility if reasonable suspicion exists, judge finds

May 27, 2010 02:31 PM ET

Computerworld - In recent cases, U.S. courts have supported the government's right to search the contents of computers and other electronic devices carried by travelers arriving at U.S borders.

A federal court in Michigan this week added that if such a search could not be performed at the border, the government has the right to seize and transport a computer to a secondary inspection facility, as long as there's reasonable suspicion.

The issue of border laptop searches is important for business travelers who arrive at U.S airports carrying computers they use for work. Privacy advocates, security analysts and others have expressed concern that such searches could result in the exposure of sensitive company or customer data. The U.S. Department of Homeland Security has previously asserted its right to inspect, copy or download the contents of computers or other electronic devices belonging to travelers at U.S. borders even without cause.

The federal court's ruling was first reported by the Web site FourthAmendment.com. The ruling was in response to a motion filed by the defendant in a child pornography case, who alleged that U.S. customs officials violated his Fourth Amendment rights when they took away one of his computers at Detroit Metropolitan Airport.

The defendant, Theodore Stewart, is charged with transporting child pornography on two laptop computers that were in his possession when he arrived at the Detroit airport after a trip to Indonesia last May. According to court papers, a U.S. immigration and customs agent discovered images that appeared to depict child pornography on one of Stewart's computers during a secondary inspection of his belongings at the airport.

Customs officials were unable to immediately inspect the other computer, however, because its battery was damaged and no adapter was available to power up the system. Both computers were seized, and Stewart was allowed to go after being informed that the seized devices were being transported to a separate forensic facility for inspection.

Stewart was later charged with transporting child pornography based on evidence gathered from both computers during the inspection at the secondary facility. To do the inspection on the second computer, forensics agents had to remove the hard disk and mount it on another system.

Stewart sought to have the evidence from the second computer suppressed. In a brief, Stewart argued that while the initial inspection of one computer at the airport may have been valid, the seizure of the second computer and its inspection at the forensic facility amounted to an unreasonable, extended border search. Stewart also claimed that the evidence found on the second computer was discovered in violation of his Fourth Amendment rights against unreasonable seizure and search.

The government contended that the search at the forensic facility was a continuation of the search at Detroit airport. Having found what appeared to be evidence of child pornography on one computer, it was reasonable to suspect that the other one might also contain such content, the government said. It claimed that the search of the second computer was no different than multiple entries being made into a premises using a single search warrant.

In a 10-page ruling, Judge David Lawson of the U.S. District Court for the Eastern District of Michigan said he could not fully accept either argument.

"Removing the laptops from the point of entry into the country and transporting them to a remote forensic laboratory may result in an intrusion greater than one might reasonably expect upon entering or re-entering the United States," Lawson wrote. Stewart was therefore correct in arguing that he was subjected to an extended border search, the judge wrote.

However, the search of the computer was valid, because agents clearly had reason to believe it might contain child pornography based on their inspection of the first computer at the airport, Lawson said.

In dismissing Stewart's motion to suppress evidence from the second computer, the judge also stressed that the search was only justified because the government was able to show "a particularized and objective" basis for suspicion in the case. The fact that the inspections were conducted within a day of the computers being seized also made it a reasonable search, he said.

"There comes a point when the passage of time or other circumstances can transform a seizure of property reasonable at its outset into an unreasonable intrusion," he said. But in this case that did not happen, Lawson wrote.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at Twitter @jaivijayan, or subscribe to Jaikumar's RSS feed Vijayan RSS. His e-mail address is jvijayan@computerworld.com.

Read more about Privacy in Computerworld's Privacy Topic Center.



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