BORDER INSECURITY
9th Circuit: Laptops May Be Subject to Customs Inspections After Overseas Trips


BY STEVE SEIDENBERG

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.

2006 ABA Journal