Federal court upholds border search of laptop in Texas

Customs agents did not violate individual's rights when they searched computer for child porn

The U.S. District Court for the Southern District of Texas has become the latest federal court to uphold the right of U.S. customs agents to conduct warrantless searches of laptop computers at U.S. borders.

In a ruling last week, the court denied a motion to suppress evidence gathered from a border search that was filed by a man who is accused of possessing, transporting and distributing child pornography.

Sandeep Verma of Sugarland, Texas, was arrested in February 2008 at a Houston airport on his return from a visit to Bogota, Colombia. The charges against him stem from evidence gathered from a search of his computer and external drives at the airport and a subsequent search of other computers and storage devices from his car, which yielded more than 100,000 illegal images.

In his motion to suppress the evidence from the border search, Verma claimed that the search of his computer and external drives at the airport violated his Fourth Amendment rights against unreasonable search and seizure. Verma contended that the warrantless search of his computer by a cyber specialist from the Immigration and Customs Enforcement (ICE) unit amounted to an unreasonable forensic analysis of his computer without a reason.

He argued that the "comprehensive forensic search and analysis" of his computer by a cyber specialist at the airport went well beyond a routine search of his computer. Federal agents acted "in a manner in which its intent was to circumvent the protections of the Fourth Amendment," he claimed.

The government maintained that the search stemmed from an ongoing investigation of Verma for child pornography. Well before Verma was searched at the airport, the FBI had already linked his home IP address to an Internet Relay Chat server containing images of child pornography. Prosecutors said the airport search of Verma's computers stemmed from that investigation and from the fact that he was reentering the U.S. from a country that the U.S. considers to be at "high-risk' for child pornography.

In response to Verma's motion, U.S. District Court Judge Gary Miller ruled that the searches were constitutional with or even without reasonable cause or suspicion.

Miller dismissed Verma's contention that the computer search at the airport had been non-routine or unduly intrusive.

"The court finds that reviewing the files of a computer does not rise to the level of "invasion of the privacy and dignity of the individual to make the search non-routine," he wrote in a 14-page ruling. "Even had the search of the computer been as exhaustive as Verma claims, the court is not convinced it would be considered non-routine" and needing reasonable cause or particularized suspicion for it to be conducted, he wrote.

In his ruling, Miller noted a 2004 Supreme Court ruling that held the search of a vehicle's gas tank was routine even after customs agents called in a mechanic to physically remove the tank from the vehicle's undercarriage and had it cracked it open. In comparison, the forensic examination of a computer was far easier and caused less lasting damage, he noted. "The search did not invade Verma's body or damage his computer," and was therefore routine, he wrote.

The judge added that even if the search were to be considered non-routine, no constitutional rights were violated in this case because agents had a reasonable suspicion concerning Verma. "The Supreme Court has upheld far more intrusive searches on far less particularized information," he wrote.

The ruling is the latest in which courts have held that customs agents do not always need to have reasonable cause or suspicion to search through the contents of a computer or other electronic device at U.S. borders.

In 2008, for instance, the U.S. Court of Appeals for the Ninth Circuit reached such a conclusion in a case involving an individual who was also accused of transporting child pornography on his computer. In arriving at its decision, the appellate court noted that a reasonable-suspicion standard is appropriate for certain kinds of border searches in which there was a great risk of exceptional damage to property or where the searches were of a particularly offensive nature. Computer searches at U.S. borders, the court ruled, did not fall into this category.

In 2004, the Supreme Court noted that a reasonable suspicion requirement applies largely to searches of individuals and not necessarily of their personal property. Last August, the Department of Homeland Security's privacy office supported the right of U.S. Immigration and Customs Enforcement agents to copy, download, retain or seize any content from electronic devices, or the devices themselves, without assigning any specific reason for doing so. The DHS noted that such searches were no different from searches of briefcases and backpacks and were needed to interdict and investigate violations of federal law at U.S. borders.

The court's ruling was first reported in FourthAmendment.com.

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

Copyright © 2010 IDG Communications, Inc.

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