Travelers have become use to routine security searches at airports. Passengers understand that their bags will be x-rayed and searched and that electronic devices must be turned on in order to ensure that they are, in fact, functional electronic devices.
However, a recent Ninth Circuit Appellate Court decision has allowed security to conduct a more in-depth inspection of electronic devices.
In U.S. v. Arnold, 2008 U.S. App. LEXIS 8590 (9th Cir. 2008), the court held that a warrantless search of the defendant's laptop computer and the files contained therein was permitted. Michael Arnold was traveling from the Philippines to the U.S. via Los Angeles International Airport. While waiting to go through a security checkpoint, a U.S. Customs and Border Patrol Officer stopped Mr. Arnold for additional questioning. The Customs officer then searched Arnold's luggage, which contained his laptop computer. Another Customs officer turned on the computer to ensure that it was operational. However, the Customs officer continued to inspect the laptop beyond this cursory search. During the course of that search, the Customs officer discovered photographs that were believed to be child pornography. The laptop was seized and a warrant was subsequently issued for the arrest of Arnold for knowingly transporting child pornography.
Arnold filed a motion to suppress and argued that the warrantless search was an unlawful search and seizure under the Fourth Amendment because it was conducted without reasonable articulable suspicion. The district court granted the motion and found that reasonable articulable suspicion was needed for the search of the laptop.
On appeal, the Ninth Circuit reversed this ruling and found that particularized suspicion is not required for the search of the laptop because the laptop was a search of property, not of the person. The appellate court relied on the Fourth Circuit's holding and reasoning in U.S. v. Ickes, 393 F.3d 501 (4th Cir. 2005). Ickes involved the warrantless search of a van by Customs agents at the U.S./Canadian border. During the search, several photography albums containing pictures of young, nude and semi-nude boys were recovered. The Fourth Circuit found that the border search doctrine granted border agents additional latitude in conducting searches because of their unique position in protecting against terrorist communications. Ultimately, the Ninth Circuit determined that a person's expectation of privacy in personal property at the border is significantly less than at one's home.
This ruling will have significant impact on business travelers that have laptop computers containing privileged or confidential information. Indeed, business travelers whose laptop computers may contain confidential information for their companies - quite apart from the materials carried by Mr. Arnold - should heed this decision. Under this ruling, any of those documents may be viewed by Customs officers. There are currently no assurances that the information will not be disseminated or made known to others beyond the person that conducted the search.
In addition, documents of a personal nature, including the names of your contacts and family members, credit card numbers, social security numbers and any other personal information one would want to keep private are also subject to inspection. In the end, individuals must be cognizant of the information that they travel with because there is a strong likelihood that privileged or confidential information will not remain that way if traveling through an airport. Lastly, it is likely that the Supreme Court may have the last word on this issue, but during the interim, electronic devices are subject to a thorough inspection.
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Chicago associate Dominick Lanzito concentrates his practice in general, construction, class action, civil rights, and intellectual property. Prior to joining Querrey & Harrow, Mr. Lanzito served as an Assistant State's Attorney for the Cook County State's Attorney Office, gaining experience in torts and civil rights litigation, as well as in criminal prosecution and criminal appeals. While attending the John Marshall Law School, Mr. Lanzito served as Staff Editor and Executive Board Member for the Journal of Computer and Information Law.
Should you have any questions regarding this article, please contact Dominick via 312-540-7592, or via dlanzito@querrey.com.
