9th Circuit: Laptops May Be Subject To Customs Inspections After Overseas Trips
by : Steve Seidenberg
Saturday September 16, 2006 - 16:37
9th Circuit: Laptops May Be Subject To Customs Inspections After Overseas Trips By Steve Seidenberg Friday, September 15, 2006
With a conviction for online child exploitation, Stuart Romm is hardly a sympathetic advocate for computer privacy.
Still, what happened to Romm when he crossed the border into the United States worries some legal experts. The laptop computer that he carried with him was intensively searched by customs officials. On July 24, the 9th U.S. Circuit Court of Appeals ruled that the search was legal.
In U.S. v. Romm, No. 04-10648, the San Francisco-based 9th Circuit ruled that customs officials can seize and search the contents of anyone’s laptop computer, even in the absence of a search warrant or probable cause.
Some attorneys say the ruling goes too far, invading the privacy of anyone who crosses into the United States. And the ruling may pose special problems for attorneys who need to keep client information confidential when they go on business trips overseas.
"What’s dangerous about this opinion is that it pushes the line for searches along the border very far toward one end of the constitutional spectrum," says Shaun Martin, a professor at the University of San Diego School of Law. "It is one thing to turn on your computer in the airport to make sure it is not a bomb. It is another thing for customs officials to turn on your computer and to read everything you ever wrote and to look at everything you ever downloaded."
When Romm flew into Seattle-Tacoma International Airport on Feb. 2, 2004, he went through U.S. customs knowing that he recently had used his laptop to find and view child pornography that was posted on the Internet, according to the 9th Circuit opinion. This violated the terms of his probation in Florida, where he had pleaded nolo contendre to charges of promoting sexual performance by a child and child exploitation by means of computer. So Romm deleted the contents of his browser’s cache, thinking this would erase the evidence of his wrongdoing.
He was mistaken. His actions had merely deleted the pointers to the cached files-the files themselves remained on the laptop. Using special software, customs officials were able to find 42 images of child pornography on the laptop’s hard drive. These images were subsequently used to convict Romm of knowingly receiving and possessing child pornography in violation of federal law. Romm appealed, but the 9th Circuit upheld the border search and the conviction.
The court noted that the usual Fourth Amendment standards don’t apply to border searches of people. "The government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant," the court stated, citing the U.S. Supreme Court’s 1985 ruling in United States v. Montoya de Hernandez, 473 U.S. 531.
The 9th Circuit declined to rule on whether searching the contents of a laptop is routine because the issue wasn’t raised in Romm’s appeal. The Supreme Court has indicated, however, in United States v. Flores-Montano, 541 U.S. 149 (2004), that "border searches of belongings are always routine, so long as the belongings aren’t hurt," says Angelo Paparelli, an immigration law attorney who practices in New York City and Irvine, Calif.
Additionally, the 4th Circuit, based in Richmond, Va., has explicitly found that searching the contents of a laptop computer is categorically a routine border search. United States v. Ickes, 393 F.3d 501 (2005).
The Ickes and Romm rulings may encourage the government to peer more often into the contents of travelers’ laptops, according to Martin. "Up to now, the government has rarely been that aggressive in conducting these sort of in-depth searches [of laptops]," Martin says. "The danger is that now that you have fairly clear judicial approval, it will become much more prevalent."
Such searches could put attorneys in a bind. They could find themselves coming back from international business trips with privileged information in their laptops and being confronted by a customs official who demands to examine the laptop’s data.
An attorney in such a situation has a duty to protect the confidentiality of information relating to representing a client, notes William Dunn, a Detroit attorney who chairs the ABA’s Standing Committee on Ethics and Professional Responsibility. But protecting the information may not be as easy as simply asserting that the laptop can’t be inspected because it contains privileged information. "It won’t fly for attorneys to tell customs agents how to do their job," Martin says.
Technological protections won’t do much good, either. It’s possible to password-protect a computer and encrypt its files, but that might provoke an unpleasant response from customs officials. "The danger is that they will keep you in the airport or keep your computer until they can access those files," Martin says.
The best practice may be to keep sensitive information off the laptop entirely. Yet even if the client data resides on a law firm’s servers, and a traveling attorney merely uses a laptop to connect to the servers via a virtual private network, there may be trouble. For instance, the laptop will create temporary files of any Word documents that are opened. These temporary files will be on the hard drive, and they might be recoverable through forensic examination.
Even worse, the customs official might simply demand the attorney provide the password to the law firm’s VPN.
Paparelli is aware of at least one instance in which a customs agent asked for an e-mail password so the officer could examine the individual’s e-mail correspondence. "Imagine if that were the password of a company employee, and it led the agent into a corporate network database," he says.
Perhaps the only way to guarantee protection for confidential data is to leave your laptop at home and connect to your data via a computer that stays overseas. "People should not carry laptops across borders if they don’t want their laptops inspected by the government," Paparelli says.
A message of your fellow striking workers from France
Tuesday 12 - 20:49by Info’Com-CGT
The Right to Vote, Effectively
Friday 8 - 22:20by William John Cox
Fourth of July Lies
Sunday 3 - 19:41by June C. Terpstra
Who Should Make Political Policy, the People or the Politicians?
Friday 24 - 15:14by William John Cox
Hollow Women of the Hegemon Part II: Atrocity Enabling Harpies
Tuesday 21 - 18:49by Dr. June Terpstra
The American Republic Manifestum book is being made into a Movie
Saturday 11 - 15:54by William Morgan
Write-in Voting and Political Protest
Wednesday 1 - 15:05by William John Cox
Yves Bouvier art battle plays out in online and social media arena
Tuesday 31 - 21:12by Dean Bagley
Damaged Candidate Clinton Can’t Call Out Trump
Friday 27 - 13:53by Daniel Patrick Welch
PLEDGE OF THE NEW REPUBLICAN PARTY
Tuesday 24 - 21:53by David R. Hoffman, Legal Editor of Pravda.Ru
LET TEXAS SECEDE
Thursday 19 - 00:53by David R. Hoffman, Legal Editor of Pravda.Ru
LAS TRES ERRES A LA ENÉSIMA POTENCIA.-
Monday 16 - 15:35by FREDDY SUBDIAGA
Monday 16 - 15:26by FREDDY SUBDIAGA
Oligarchs Won’t Let You Vote Their Wars Away
Wednesday 11 - 20:24by Daniel Patrick Welch
AN AMERICAN ORIGINAL: JOHN KERRY - FROM HIS REMARKABLE RECENT COMMENCEMENT ADDR
Monday 9 - 20:40by JOHN CHUCKMAN
Donald Trump and Hillary Clinton support the American Republic Manifestum
Monday 9 - 16:37by William Morgan
Transformation: A Student-Led Mass Political Movement
Monday 25 - 19:28by William John Cox
Algerian Feminists react to ’Hijab Day’ in Paris 2016
Monday 25 - 01:13
THE ILLUSION OF RIGHTS
Friday 22 - 18:45by JOHN CHUCKMAN
US is real superpredator pretending to be victim
Monday 18 - 22:23by Daniel Patrick Welch
Gaiacomm International has accidently created a fusion reaction/ignition.
Sunday 17 - 17:01by William Morgan
Clinton’s Campaign Continues to Highlight Horrible Hillary
Saturday 9 - 00:57by Daniel Patrick Welch
Armoiries racistes à Harvard : Plaidoyer pour la réflexion socio-historique
Thursday 7 - 18:56by Samuel Beaudoin Guzzo
THANK YOU MISSISSIPPI FOR YOUR HATE
Wednesday 6 - 02:02by David R. Hoffman, Legal Editor of Pravda.Ru
The PKK in Iraq: “We are ready to fight ISIS everywhere in the world”
Monday 4 - 14:33by InfoAut
Clinton Crashes and Burns, Sanders Will Win (But hold off on the applause)
Friday 1 - 22:33by Daniel Patrick Welch
Confirming Supreme Court Justices and Electing Presidents
Friday 1 - 20:59by William John Cox
PCBS: "As Palestinians Mark Land Day, Israeli Illegally Controls More Than 85% O
Wednesday 30 - 14:06by Palestinian Central Bureau of Statistics - PCBS
RUNAWAY TRAIN America’s election and its inability to alter the nation’s deadly
Friday 25 - 16:49by JOHN CHUCKMAN
Vicky Nuland, Neocon Hypocrite: Syria Pullout won’t ’let Russia off the hook’
Friday 18 - 15:59by Daniel Patrick Welch
Time to End the Clintons’ Unearned Pass on Race
Wednesday 16 - 23:22by Daniel Patrick Welch
TRUMP’S ANTI IMMIGRANT RACISM NOT CONFINED TO US
Wednesday 16 - 16:37by Daniel Patrick Welch
Between bids and sponsoring, Samsung’s peculiar business practices
Friday 11 - 14:49by Hannah Howard
I, European citizen, won’t let refugees be rejected in my name
Thursday 10 - 09:24
Slovaquie : Manifestation contre l’entrée au Parlement d’un parti néo-nazi
Tuesday 8 - 22:09by Samuel Beaudoin Guzzo
WHAT IS REALLY AT STAKE IN THE ODDEST AMERICAN ELECTION SEASON OF A LIFETIME
Tuesday 8 - 11:53by JOHN CHUCKMAN
I FINALLY HAVE PROOF, A CRAFT AND AN ALIEN…
Tuesday 8 - 04:55by gaiacomm
The Scandal of Voter Suppression in America
Tuesday 1 - 22:39by William John Cox
Are you bothering to vote? If so, read this about the Killmeister
Tuesday 1 - 14:14by Daniel Patrick Welch
HILLARY’S SECRET LETTER AND THE WHOLE MATTER OF ENDLESS WAR AND THE ALMOST COMPL
Monday 29 - 21:49by JOHN CHUCKMAN