Border Searches of Laptop Computers and Other Electronic Storage Devices

Border Searches of Laptop Computers and Other Electronic Storage Devices

Border Searches of Laptop Computers and
Other Electronic Storage Devices
Yule Kim
Legislative Attorney
November 16, 2009
Congressional Research Service
7-5700
www.crs.gov
RL34404
CRS Report for Congress
P
repared for Members and Committees of Congress

Border Searches of Laptop Computers and Other Storage Devices

Summary
As a general rule, the Fourth Amendment of the U.S. Constitution requires government-
conducted searches and seizures to be supported by probable cause and a warrant. Federal courts
have long recognized that there are many exceptions to these requirements, one of which is the
border search exception. The border search exception permits government officials to conduct
“routine” searches based on no suspicion of wrongdoing whatsoever. On the other hand, when
warrantless border searches are particularly invasive, and thus “non-routine,” they are permissible
only when customs officials have, at a minimum, a “reasonable suspicion” of wrongdoing.
The federal courts that have addressed this issue have held that the border search exception
applies to searches of laptops at the border. Although the Supreme Court has not directly
addressed the degree of suspicion needed to search laptops at the border without a warrant, the
federal appellate courts that have addressed the issue appear to have concluded that reasonable
suspicion is not needed to justify such a search. The Ninth Circuit, in United States v. Arnold,
explicitly held that reasonable suspicion is not required to conduct a warrantless search of a
laptop at the border.
Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), two
agencies within the Department of Homeland Security (DHS) that have roles in border security,
have published directives outlining their policies and procedures regarding laptop border
searches. Both policies assert that, as a general matter, laptop border searches may be conducted
without any individualized suspicion and require reasonable suspicion only in certain
circumstances.
A bill introduced in the 111th Congress, the Securing our Borders and our Data Act of 2009 (H.R.
239), would impose more rigorous standards for laptop searches than those the federal courts
have determined are constitutionally required. Another bill introduced in the 111th Congress, the
Border Security Search Accountability Act of 2009 (H.R. 1726), would mandate that the
Commissioner of Customs and Border Protection promulgate a rule with respect to the scope of
and procedural and record keeping requirements associated with border security searches of
electronic devices.

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Border Searches of Laptop Computers and Other Storage Devices

Contents
Introduction ................................................................................................................................ 1
Border Search Exception............................................................................................................. 1
Judicial Developments on Laptop Searches ................................................................................. 3
United States v. Ickes............................................................................................................. 4
United States v. Romm........................................................................................................... 5
United States v. Arnold.......................................................................................................... 6
United States v. Seljan........................................................................................................... 7
Federal Policies on Border Laptop Searches ................................................................................ 8
Customs and Border Protection Policy .................................................................................. 8
Immigration and Customs Enforcement Policy.................................................................... 10
Conclusion................................................................................................................................ 12
Legislative Proposals ................................................................................................................ 13

Contacts
Author Contact Information ...................................................................................................... 14

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Introduction
A developing issue in the law of search and seizure is whether the Fourth Amendment of the U.S.
Constitution permits warrantless searches of the content of laptop computers and other electronic
storage devices at U.S. borders. The federal courts that have addressed this issue have held that
the border search exception to the Fourth Amendment applies to these searches, making
warrantless searches permissible. Although most of these courts did not make explicit the degree
of suspicion needed to initiate such a search, the United States Court of Appeals for the Ninth
Circuit ruled that the Fourth Amendment does not require reasonable suspicion, or, for that
matter, any suspicion of wrongdoing at all, to justify a warrantless search of laptops at the border.
Border Search Exception
The Fourth Amendment mandates that a search or seizure conducted by a government agent must
be “reasonable.”1 As a general rule, courts have construed Fourth Amendment reasonableness as
requiring probable cause2 and a judicially granted warrant.3 Nonetheless, the Supreme Court has
recognized several exceptions to these requirements, one of which is the border search
exception.4
The border search exception to the Fourth Amendment allows federal government officials to
conduct searches at the border without a warrant or probable cause. Although Congress and the
federal courts have long assumed, at least implicitly, the existence of a border search exception,5
the Supreme Court did not formally recognize it until it decided Ramsey v. United States in 1977.6
In Ramsey, the Supreme Court approved the search of several suspicious envelopes (later found
to contain heroin) conducted by a customs official pursuant to search powers authorized by
statute.7 The Court determined that the customs official had “reasonable cause to suspect”8

1 U.S. Const. Amend. IV.
2 The Supreme Court has interpreted probable cause to mean “a fair probability that contraband or evidence of a crime
will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). See also Ornelas v. United States, 517
U.S. 690, 696 (1996).
3 Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process without prior
approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well delineated exceptions.”).
4 For a more expansive treatment of the border search exception to the Fourth Amendment, see CRS Report RL31826,
Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment, by Yule Kim.
5 See Act of July 31, 1789, ch. 5 §§23-24, 1 Stat. 29, 43 (authorizing customs officials “full power and authority” to
enter and search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise
subject to duty shall be concealed ...”); Carroll v. United States, 267 U.S. 132, 153-154 (1925) (“Travellers may be so
stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the
country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”).
Accord Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. 12 200-Ft. Reels of Super 8mm. Film,
413 U.S. 123 (1973); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971); Boyd v. United States, 116
U.S. 616 (1886).
6 431 U.S. 606, 619 (1977).
7 Id. at 622.
8 “Reasonable cause to suspect” appears to be equivalent to “reasonable suspicion,” which is simply a particularized
and objective basis for suspecting the particular person of wrongdoing. See Terry v. Ohio, 392 U.S. 1, 21 (1978).
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suspicious activity when searching the envelopes.9 This standard, while less stringent than
probable cause, was sufficient justification.10 The border search exception has subsequently been
expanded beyond persons, objects, and mail entering the United States, to cover individuals and
objects departing from the United States11 and to apply in places deemed the “functional
equivalent” of a border, such as international airports.12
As the border search exception has further developed in case law, lower federal courts have
recognized two different categories of border searches: routine and non-routine. This distinction
is based on language in United States v. Montoya de Hernandez, where the Supreme Court
determined the level of suspicion needed to justify “a seizure of an incoming traveler for purposes
other than a routine border search.”13 In that case, customs officials detained a traveler whom they
suspected of smuggling drugs.14 The customs officials eventually obtained a court order
authorizing a rectal examination, which produced a balloon containing cocaine.15 The Court held
that, even though the detention “was beyond the scope of a routine customs search and
inspection,” the customs officials’ “reasonable suspicion” that the suspect was smuggling drugs
provided sufficient justification for the search.16 Federal courts have since interpreted this case to
stand for the proposition that “reasonable suspicion” (i.e., a particularized and objective basis for
suspecting wrongdoing) is required to justify similarly invasive searches.17
Although the Court in Montoya de Hernandez focused on a “non-routine” detention of a traveler
at the border, lower federal courts, interpreting dictum in that case, began distinguishing
unusually intrusive searches from “routine” searches.18 These courts thereby expanded the border
search exception by concluding that a customs official may conduct “routine” warrantless
searches of persons or effects without any reason for suspicion.19 The Supreme Court further

9 431 U.S. at 614.
10 Id. at 619 (“This longstanding recognition that searches at our borders without probable cause and without a warrant
are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.”).
11 See United States v. Berisha, 925 F.2d 791, 795 (5th Cir. 1991) (extending the border search exception to routine
outbound searches); United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976), cert. denied, 436 U.S. 917 (1978);
United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Duncan, 693 F.2d 971, 977 (9th Cir.
1982); United States v. Ajlouny, 629 F.2d 830, 834 (2d Cir. 1980).
12 See Almeida-Sanchez v. United States, 413 U.S. 266, 272-273 (1973); United States v. Hill, 939 F.2d 934, 936 (11th
Cir. 1991); United States v. Gaviria, 805 F.2d 1108, 1112 (2d Cir. 1986). In the context of international airports, the
border search exception only applies to searches of persons and effects on international flights, whereas the
administrative search exception, which applies to routine searches with purposes unrelated to law enforcement, is used
to justify searches of persons and effects on domestic flights. See United States v. Davis, 482 F.2d 893, 908-912 (9th
Cir. 1973).
13 473 U.S. 531, 541 (1985) (“We have not previously decided what level of suspicion would justify a seizure of an
incoming traveler for purposes other than a routine border search.”).
14 Id. at 535.
15 Id.
16 Id. at 541 (“We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and
inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip,
reasonably suspect that the traveler is smuggling contraband in her alimentary canal.”).
17 See United States v. Flores-Montano, 541 U.S. 149, 154 citing Terry, 392 U.S. at 21 (“And in justifying the
particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.”).
18 Montoya de Hernandez, 473 U.S. at 538 (“Routine searches of the persons and effects of entrants are not subject to
any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a
warrant on less than probable cause.”).
19 See United States v. Ezeiruaku, 936 F.2d 136 (3d Cir. 1991); Berisha, 925 F.2d 791. See also United States v.
(continued...)
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developed this doctrine in United States v. Flores-Montano, in which it held that the disassembly
and examination of an automobile gasoline tank at the border did not have to be justified by any
suspicion of wrongdoing.20 The Court concluded that the gasoline tank search was no more
intrusive than a routine vehicle search because there was no heightened expectation of privacy
surrounding the contents of a gasoline tank; this conclusion was reached even though the search
involved a time-consuming disassembly of the vehicle.21 Flores-Montano illustrates that
extensive, time-consuming, and potentially destructive warrantless searches of objects and effects
can be conducted without any reasonable suspicion of wrongdoing.
In summary, Supreme Court precedent currently indicates that federal border officers do not need
any suspicion of wrongdoing to support most border searches. An exception arises, however, with
respect to highly intrusive, non-routine searches. These searches require “reasonable suspicion.”22
Yet, the precise level of intrusion that would render a border search non-routine is undefined in
the case law.23 Typically, this question is dealt with in a fact-specific manner on a case-by-case
basis.24 Nonetheless, Flores-Montano indicates that, unlike a search of a person’s body,
intrusiveness may not be a dispositive factor when determining whether the search of a vehicle or
personal effects requires reasonable suspicion. Thus, it appears that in most cases, courts are
likely to uphold that even very invasive searches of personal property can be conducted without a
warrant and be based on no suspicion whatsoever.25
Judicial Developments on Laptop Searches
With the advent of portable computing, it is now common practice for travelers to store their data
on laptop computers, compact discs, and other electronic storage devices and to travel with them
across the U.S. border. In response, customs officials have been searching and seizing such
devices. The issue confronting federal courts is whether the border search exception applies to
electronic storage devices, and if it does, what degree of suspicion is needed to justify a
warrantless search.
The Supreme Court has yet to address this issue. Most lower federal courts, however, have
concluded that searches of laptops, computer disks, and other electronic storage devices fall under

(...continued)
Chaplinksi, 579 F.2d 373 (5th Cir. 1978); United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974); United States v.
Chavarria, 493 F.2d 935 (5th Cir. 1974); United States v. King, 483 F.2d 353 (10th Cir. 1973).
20 541 U.S. 149, 154 (2004).
21 Id. (“It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be
more of an invasion of privacy than the search of the automobile’s passenger compartment.”).
22 See id. citing Terry, 392 U.S. at 21 (“And in justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.”).
23 See id. at 541 n. 4.
24 Id. (requiring “reasonable suspicion” for the detention of a traveler at the border, beyond the scope of a routine
customs search and inspection). See also Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) (holding that strip
searches may be conducted only upon a real suspicion); United States v. Adekunle, 980 F.2d 985 (5th Cir. 1992), on
reh’g, 2 F.3d 559 (5th Cir. 1993) (requiring reasonable suspicion to justify a strip search); United States v. Asbury, 586
F.2d 973, 975-976 (2d Cir. 1978) (requiring reasonable suspicion for strip searches); Rivas v. United States, 368 F.2d
703 (9th Cir. 1966) (requiring a clear indication of the possession of narcotics to justify an alimentary canal search).
25 Flores-Montano, 541 U.S. at 152.
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the border search exception, which means neither a warrant nor probable cause is necessary to
support the search.26 Nonetheless, these courts have not explicitly established the degree of
suspicion required to justify a warrantless search of a laptop at the border; rather, courts have
avoided the issue by finding that reasonable suspicion supported the particular searches before
them.27 Even in the one instance a court held that a laptop search was routine, it also found that
reasonable suspicion supported the search.28 The one exception to this trend is United States v.
Arnold, in which the Ninth Circuit explicitly held that reasonable suspicion was not needed to
support a warrantless border search of laptops and other electronic storage devices.29 Because
laptop border search cases are a developing area of case law, a full understanding of this issue
requires a closer look at the facts of these cases and the approaches the courts used in their
analyses.
United States v. Ickes
One of the first federal appellate cases to discuss searches of laptops at the border is United States
v. Ickes.30 In Ickes, a customs official, without a warrant, searched the defendant’s van near the
Canadian border after discovering during a routine search a videotape that focused excessively on
a young ballboy during a tennis match.31 His suspicions raised, the official requested the
assistance of a colleague. They then proceeded to conduct a more thorough search in which they
uncovered marijuana paraphernalia, a photo album containing child pornography, a computer, and
several computer disks.32 Other customs officials proceeded to examine the contents of the
computer and disks, all of which contained additional child pornography.33 The defendant later
filed a motion, which was denied by the trial court, seeking to suppress the contents of the
computer and disks on both First and Fourth Amendment grounds.34
The Fourth Circuit held that the search of the defendant’s computer and disks did not violate
either the Fourth or First Amendment. Regarding the Fourth Amendment challenge, the court
noted that the border search exception applied in this case.35 The court concluded by opining that

26 See, e.g., United States v. Ickes, 393 F.3d 501, 505 (4th Cir. 2005); United States v. Romm, 455 F.3d 990, 997 (9th
Cir. 2006); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006) (“An airport is considered the functional
equivalent of a border and thus a search there may fit within the border search exception.”); United States v. Furukawa,
No. 06-145, slip op. (D. Minn., November 16, 2006), 2006 U.S. Dist. LEXIS 83767; United States v. Hampe, No. 07-3-
B-W, slip op. (D. Me., April 18, 2007), 2007 U.S. Dist. LEXIS 29218.
27 See, e.g., Irving, 452 F.3d at 124 (“Because these searches were supported by reasonable suspicion, we need not
determine whether they were routine or non-routine.”); Furukawa, slip op. at *1-2 (“[T]he court need not determine
whether a border search of a laptop is ‘routine’ for purposes of the Fourth Amendment because, regardless, the
magistrate judge correctly found the customs official had a reasonable suspicion in this case.”).
28 Ickes, 393 F.3d at 507 (noting that the computer search did not begin until the customs agents found marijuana
paraphernalia and child pornography which raised a reasonable suspicion); Hampe, slip op. at *4-5 (holding that even
though the laptop search did not implicate any of the serious concerns that would characterize a search as non-routine,
the peculiar facts of the case gave rise to reasonable suspicion).
29 533 F.3d 1003, 1008 (2008) (“We are satisfied that reasonable suspicion is not needed for customs officials to search
a laptop or other personal electronic storage device at the border.”).
30 393 F.3d 501 (4th Cir. 2005).
31 Id. at 502.
32 Id. at 503.
33 Id.
34 Id.
35 Id. at 505.
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“[a]s a practical matter, computer searches are most likely to occur where—as here—the
traveler’s conduct or the presence of other items in his possession suggest the need to search
further,” indicating that the court believed that such searches will typically occur only when a
customs official has reasonable suspicion.36
The court also rejected the defendant’s contention that the First Amendment bars the border
search exception from being applied to “expressive” materials. The court stated that a First
Amendment exception would “create a sanctuary for all expressive materials—including terrorist
plans,” and that it would cause an excessive amount of administrative difficulties for those who
would have to enforce it.37
United States v. Romm
The Ninth Circuit has also addressed this issue in United States v. Romm.38 The defendant in that
case had arrived at an airport in British Columbia when a Canadian customs agent, after
discovering that he had a criminal history, searched the defendant’s laptop.39 During the search,
the Canadian customs agent uncovered child pornography sites in the laptop’s “internet history”;
the defendant was consequently denied entry into Canada and flown to Seattle.40 The Canadian
authorities informed U.S. Immigration and Customs Enforcement (ICE) of the contents of the
defendant’s laptop. When the defendant arrived in Seattle, ICE detained the defendant and
convinced him to allow ICE agents to examine his laptop without a warrant.41 ICE agents then
used a forensic analysis, which recovered deleted child pornography from the laptop. The
defendant later filed a motion to suppress the evidence obtained from his laptop, which the trial
court denied.42
The Ninth Circuit held that the forensic analysis used by the ICE agents fell under the border
search exception.43 The court noted that airport terminals were “the functional equivalents” of a
border, allowing customs agents to conduct routine border searches of all deplaning passengers.44
The court then stated that all passengers deplaning from an international flight are subject to
“routine” border searches.45 Because the defendant failed to brief the argument that the First
Amendment implications of warrantless laptop searches render such searches “non-routine,” the
court did not consider that argument.46 The court instead presumed that the search of the
defendant’s laptop was a part of a “routine” search conducted after deplaning from an
international flight.47 However, because the court made this conclusion solely because the

36 Id. at 507.
37 Id. at 506.
38 455 F.3d 990 (9th Cir. 2006).
39 Id. at 994.
40 Id.
41 Id.
42 Id.
43 Id. at 997.
44 Id. at 996.
45 Id.
46 Id.
47 Id. at 997.
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defendant failed to brief his argument, the court’s determination that the search was “routine” had
no precedential effect.48
United States v. Arnold
In United States v. Arnold, another Ninth Circuit case, the court, apparently disregarding the
traditional routine/non-routine distinction used in most border search cases, expressly held that
reasonable suspicion was not required to support the warrantless laptop border search at issue.49
Here, the defendant had returned from the Philippines when he underwent secondary questioning
at the airport after having passed through the first customs checkpoint.50 The customs agent,
without a warrant, ordered the defendant to “turn on the computer so she could see if it was
functioning.”51 While the defendant’s luggage was being inspected, another customs agent
searched the laptop’s contents and found pictures of nude adult women.52 The defendant was then
detained for several hours while special agents from ICE conducted a more extensive search of
the laptop and discovered material they believed to be child pornography.53
The Ninth Circuit first stated that warrantless “searches of closed containers and their contents
can be conducted at the border without particularized suspicion under the Fourth Amendment.”54
Nonetheless, the court noted that the Supreme Court has recognized two situations where
reasonable suspicion is required to conduct a search of personal property: (1) when the search is
destructive, and (2) when the search is conducted in a particularly offensive manner.55 Outside of
these two situations, reasonable suspicion is not required to search property, regardless of the
nature of the property being searched. Thus, the Ninth Circuit refused to take into consideration
any special qualities of laptops that may distinguish them from other containers, such as a
laptop’s capability of storing large amounts of private data. Indeed, the court did not find the
search of a laptop to be intrinsically “offensive” simply because a laptop had a large storage
capacity.56 Instead, the court treated border searches of laptops no differently from border
searches of any other type of personal property.57
The Ninth Circuit, in its analysis, rejected the use of an “intrusiveness analysis.” An intrusiveness
analysis would require a customs officer to evaluate the potential intrusiveness of each search he
wished to conduct on a case-by-case basis in order to determine whether reasonable suspicion
would be needed to justify the search.58 The court instead adopted a categorical approach to
warrantless border searches: so long as the search is of a physical object rather than a person’s
body, reasonable suspicion is not required if the search is not physically destructive or
particularly offensive.

48 Id. (declining to consider the issue because arguments not raised by a party in its opening briefs are deemed waived).
49 533 F.3d 1003 (9th Cir. 2008).
50 Id. at 1005.
51 Id.
52 Id.
53 Id.
54 Id. at 1007.
55 Id. at 1007-1008.
56 Id. at 1009.
57 Id.
58 Id. at 1008.
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The Ninth Circuit also refused to apply a “least restrictive means” test to evaluate the
constitutionality of a border agent’s chosen method of conducting the search.59 Thus, under the
court’s analysis, a border agent seemingly can conduct a search without having to determine
whether a less intrusive means is available. The argument in favor of this categorical approach is
that it appears easier for border agents to follow. On the other hand, the breadth of the Ninth
Circuit’s ruling apparently allows border agents, so long as they avoid searching a person’s body,
almost total discretion in determining both when, and in what manner, they may search personal
property.
Finally, the Ninth Circuit refused to recognize a First Amendment protection of expressive
materials searched at the border. Similar to the reasoning in Ickes, the court held that doing so
could protect terrorist communications, create an unworkable standard for government agents,
and contravene Supreme Court precedent.60
United States v. Seljan
The majority opinion in United States v. Seljan reaffirmed Arnold by holding that an incidental
search of a letter’s content at the border did not require reasonable suspicion.61 However, a dissent
by Judge Alex Kozinski argued that reasonable suspicion was required because a letter contains
personal thoughts that the letter’s author would expect to be normally immune from search,
especially absent suspicion of wrongdoing. Although the facts of this case only involve letters, the
analyses of both the majority and dissenting opinions address the search of text, and thus would
seem to apply to written communications generally, including electronic communications.
In this case, a customs official discovered a letter soliciting sex from a child while searching a
package being mailed to the Philippines. The search of the letter’s contents was upheld even
though the scope of the statute authorizing the search was limited to the interdiction of undeclared
currency transported across the U.S. border.62 Indeed, the Seljan majority specifically cited
Ramsey, arguably the seminal case concerning the border search doctrine, in holding that “an
envelope containing personal correspondence is not uniquely protected from search at the
border.”63 Moreover, the court found additional justification for the search by concluding that it
was not unreasonable under the circumstances because the customs official did not “read” the
contents of the letter. Rather, he merely “scanned” it with his eyes, which then gave rise to the
reasonable suspicion of unlawful conduct that justified a more exacting examination of the
letter’s contents.64
In contrast, Judge Kozinksi, in his dissent, argued that the Fourth Amendment provides
heightened protections for expressive materials at the border.65 He made two arguments to
support this proposition. The first is based on the Fourth Amendment’s text, which contains a
specific prohibition against the unreasonable search and seizure of “papers.” Judge Kozinski

59 Id.
60 Id. at 1010.
61 547 F.3d 993 (9th Cir. 2008).
62 Id. at 996.
63 Id. at 1003.
64 Id. at 1004.
65 Id. at 1014 (Kozinski, J., dissenting).
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argued that this specific prohibition signals the Framers’ desire to insulate expressive content, and
the personal thoughts contained therein, from unnecessary government search.66 In support of this
interpretation, Judge Kozinski cited Entick v. Carrington, an English common law case which
would have been familiar to the Framers, which rejected “the government’s claim of unrestrained
power to search personal papers” and held that the searches and seizures of documents violated
English common law.67 According to his analysis, the prevailing view at the time of Entick was
that a search of private papers was every bit as intrusive as a body search, which, if accurate,
would indicate that the Framers intended individualized suspicion to be required to support a
search of papers even at the border.68 Second, Judge Kozinski also distinguished Seljan from past
Supreme Court precedent by characterizing the border search exception as a means to facilitate
the interdiction of smuggled contraband.69 Thus, according to Judge Kozinski, the border search
exception should be limited to the search of “containers,” primarily for the purpose of uncovering
contraband, and should not be applied to facilitate the search of expressive materials.70
Federal Policies on Border Laptop Searches
Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have
issued directives outlining their policies and procedures regarding the border searches of laptops
and other electronic devices. Both CBP and ICE are agencies within the Department of Homeland
Security (DHS). CBP provides security at the U.S. borders and ports of entry by inspecting
incoming persons and cargo in order to prevent the entry of certain individuals and goods, such as
terrorists, unauthorized immigrants, contraband (i.e., illegal narcotics), and agricultural goods
contaminated with pests or disease. ICE investigates individuals and criminal networks suspected
of facilitating illegal activities such as unauthorized immigration, terrorism, and contraband
smuggling.71 Both directives assert that CBP and ICE do not require any individualized suspicion
to search laptops and other electronic devices at the border, and outline similar procedures
regarding the handling of seized materials.72
Customs and Border Protection Policy
U.S. Customs and Border Protection (CBP), the primary agency entrusted with border security,
has released a “Directive” outlining the procedures “all CBP Officers, Border Patrol Agents,
Interdiction Agents, Marine Interdiction Agents, and other employees authorized by law to
perform searches at the border or the functional equivalent of the border, or the extended border”

66 Id. at 1017-1019 (Kozinski, J., dissenting).
67 Id. at 1017 (Kozinksi, J., dissenting) citing Entick v. Harrington, 19 Howell’s State Trials 1029, 95 Eng. Rep. 807
(1765).
68 Id. (Kozinski, J., dissenting).
69 Id. at 1016. (Kozinski, J., dissenting).
70 Id. at 1014-1015 (Kozinski, J., dissenting).
71 For more details on CBP and ICE, see generally CRS Report RS21899, Border Security: Key Agencies and
Their Missions, by Chad C. Haddal.
72 Presumably, an individualized suspicion standard is synonymous with or perhaps even weaker than a reasonable
suspicion standard. This is because the Supreme Court has rebuked the use by lower federal courts of standards of
suspicion other than probable cause or reasonable suspicion. See Montoya de Hernandez, 473 U.S. at 541.
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must follow when conducting border searches of laptops. This Directive, dated August 20, 2009,
contains
[g]uidance and standard operating procedures for searching, reviewing, retaining, and
sharing information contained in computers, disks, drives, tapes, mobile phones and other
communication devices, cameras, music and other media players, and any other electronic or
digital devices, encountered by [CBP] at the border, both inbound and outbound, to ensure
compliance with customs, immigration, and other laws that CBP is authorized to enforce.73
The Directive is limited to CBP’s border search authority, and is not meant to limit CBP’s
authority to conduct other lawful searches at the border, such as those conducted pursuant to a
warrant, consent, or incident to an arrest. It also is not intended to govern searches of commercial
quantities of electronic devices (i.e., those transported in a shipping container).74
The Directive states that CBP officers may, with or without individualized suspicion, during the
course of a border search examine an electronic device and analyze the information it contains.
Furthermore, such searches should be conducted in the presence of the individual whose
information is being examined unless “there are national security, law enforcement, or other
operational considerations” to render the individual’s presence during the search inappropriate.
However, the Directive contains a caveat that an individual’s presence does not necessarily mean
the individual can witness the search itself, and an individual will not be allowed to witness the
search if “law enforcement techniques or other operational considerations” stand to be
compromised.75
The Directive also outlines procedures related to the search of privileged or other sensitive
materials. Under the directive, legal materials, medical records, journalist work-related
information, and business or commercial information may all be subject to search.76 Legal
materials are subject to special handling procedures. Specifically, if a CBP officer encounters
legal materials he suspects may constitute evidence of a crime or otherwise pertain to a
determination within the jurisdiction of CBP (e.g., customs searches or immigration inspection),
the officer must first consult with the CBP Associate/Assistant Chief Counsel before searching
the material.77
Medical records and journalist work-related information shall be handled in accordance with “any
applicable federal law and CBP policy.”78 All business and commercial information encountered
by CBP officers shall be treated as confidential and officers shall protect this information from
unauthorized disclosures.79 If a CBP officer has questions related to the review of these categories
of information, they may be directed to the CBP Associate/Assistant Chief Counsel.80

73 Border Search of Electronic Devices Containing Information, CBP Directive No. 3340-049, § 1 (August 20, 2009).
74 Id. at § 2 (August 20, 2009).
75 Border Search of Electronic Devices Containing Information, CBP Directive No. 3340-049, § 5.1 (August 20, 2009).
76 Id. at § 5.2.
77 Id. at § 5.2.1.
78 Id. at § 5.2.2.
79 Id. at § 5.2.3.
80 Id. at §§ 5.2.2, 5.2.3.
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Detention and review policies are also dictated by the Directive. It states that an officer “may
detain electronic devices, or copies of information contained herein, for a brief, reasonable period
of time to perform a thorough border search.”81 This search may take place on-site or off-site and
should not exceed five days.82 However, detentions may be extended by five days if approved by
a Port Director, Patrol Agent in Charge, or other equivalent-level manager, and they can exceed
15 days if approved by “the Director Field Operations, Chief Patrol Agent, Director, Air
Operations, Director, Marine Operations, or other equivalent manager.” Thereafter, extensions
may be approved and re-approved in increments of seven days.83 Furthermore, if review of the
information reveals there is no probable cause to seize it, all copies of the information must be
destroyed no later than seven days after the no probable cause determination is made, unless a
supervisor approves an extension, which can last no longer than 21 days.84
The Directive also claims the right to use “other federal agency analytical resources outside of
CBP and ICE, such as translation, decryption, and subject matter expertise.”85 Technical
assistance (i.e., assistance in operating the electronic device for search or assistance in translating
or decrypting the information), can be acquired from another federal agency without
individualized suspicion. Assistance for “subject matter expertise” from experts working in other
federal agencies may be had only when there is reasonable suspicion of activities in violation of
the laws enforced by CBP. The Directive states that reasonable suspicion may be based upon the
presence of an individual on a government terrorist watch list.86
If probable cause arises after the border search of information, CBP officers are authorized to
seize the electronic device being searched, or to make copies of the information from the device.
If probable cause does not arise, “CBP may retain only information relating to immigration,
customs, and other enforcement matters if such retention is consistent with the privacy and data
protection standards of the system of records in which such information is retained.”87
Immigration and Customs Enforcement Policy
Immigration and Customs Enforcement (ICE), the agency responsible for ensuring compliance
with the federal immigration and customs laws, issued a directive on August 18, 2009, outlining
the agency’s policy and procedures regarding “the border search authority to search, detain, seize,
retain, and share information contained in electronic devices possessed by individuals at the
border, the functional equivalent of the border, and the extended border to ensure compliance
with customs, immigration, and other laws enforced by ICE.”88

81 Id. at § 5.3.1.
82 Id.
83 Id. at § 5.3.1.1.
84 Id. at § 5.3.1.2.
85 Id. at §5.3.2.
86 Id.
87 Id. at § 5.4.
88 Border Searches of Electronic Devices, ICE Directive No. 7-6.1, § 1.1 (August 18, 2009).
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The Directive asserts that “ICE Special Agents acting under border search authority may search,
detain, seize, retain, and share electronic devices, or information contained therein, with or
without individualized suspicion …”89
The Directive states that consent is not needed to conduct a border search.90 However, ICE
Special Agents should conduct border searches “in the presence of, or with the knowledge of, the
traveler” to the extent practicable.91 When not practicable, because of “law enforcement, national
security, or other operational concerns,” ICE Special Agents must note the circumstances in
appropriate ICE systems.92 In addition, permitting an individual to be in the room where the
search is conducted does not mean the individual will be allowed to witness the search. If
allowing the individual to witness the search could reveal “law enforcement techniques or
potentially compromise other operational concerns,” the individual will not be permitted to
witness the search.93
The Directive states that “Special Agents are to complete the search of detained electronic
devices, or copies of information therefrom, in a reasonable time given the facts and
circumstances of the particular search” with the circumstances noted.94 Searches are “generally”
to be finished within 30 days of the date of detention, unless circumstances warrant extra time.
Any detention exceeding the 30 calendar days must be approved by a Group Supervisor or
equivalent, and approved every 15 calendar days thereafter, with the specific justification for
additional time noted.95
The Directive outlines the procedures ICE Special Agents must use when seeking assistance from
other federal agencies or non-federal entities. According to the procedure, Special Agents are
“responsible for ensuring that the results of the assistance are received in a reasonable time.”96
Special assistance may be required when a Special Agent, during the course of a border search,
encounters information in an electronic device that “presents technical difficulties, is in a foreign
language, and/or is encrypted.”97 Special Agents may demand “translation, decryption, and/or
technical assistance” from other federal agencies or non-federal entities.98 This demand may be
made without individualized suspicion.99 Special Agents may also encounter information that
requires subject matter experts to determine whether the information is relevant to the laws
enforced by ICE.100 This demand can be made when a Special Agent has reasonable suspicion
that a law enforced by ICE is being violated.101 Special Agents may create and transmit copies of
information to other federal agencies or non-federal entities for subject matter assistance.

89 Id. at § 6.1.
90 Id. at § 8.1(3).
91 Id. at § 8.1(2).
92 Id.
93 Id.
94 Id. at § 8.3(1).
95 Id.
96 Id. at § 8.3(2).
97 Id. at § 8.4(1)(a).
98 Id.
99 Id.
100 Id. at § 8.4(2)(a).
101 Id. at § 8.4(2)(b).
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However, the original electronic devices should only be transmitted when necessary for the
subject matter assistance.102 When a Special Agent determines there is probable cause of unlawful
activity after reviewing information searched during a border search, the Special Agent may seize
and retain both the device and the information.103 All retained information from electronic devices
determined to be of no relevance to ICE will be destroyed within seven business days after the
conclusion of the border search unless circumstances require more time.104 All destructions must
be accomplished no later than 21 calendar days after conclusion of the search.105
According to the Directive, “all electronic devices crossing U.S. borders are subject to border
search,” and a claim of privilege or personal information will not prevent the search. However,
certain types of information are subject to special handling by ICE Special Agents.106 Business or
commercial information is to be treated as business confidential information.107 Legal information
and other information claimed to be protected by attorney-client or attorney work privilege can be
searched if the Special Agent suspects that the content of the information constitutes evidence of
a crime or some other matter that falls within the jurisdiction of ICE. In such a case, the Special
Agent must consult the ICE Office of the Chief Counsel or the appropriate U.S. Attorney’s Office
before beginning the search. Other sensitive information, such as medical records or journalist
work-related information will be handled pursuant to federal law and ICE policy, and questions
regarding such review, shall be directed to the ICE Office of the Chief Counsel.
Conclusion
It is arguable that there is a higher expectation of privacy surrounding the contents of laptops than
other types of physical property, such as vehicle interiors. Even when a vehicle search involves an
onerous and time-consuming inspection of a gasoline tank, some would argue that the expectation
of privacy surrounding the vehicle and its contents does not appear to be as high as the
expectation of privacy regarding the contents of a laptop, which often contains private thoughts or
other forms of privileged information. On the other hand, laptop searches are not considered by
the courts as intrusive as strip or body-cavity searches, where the expectation of privacy
surrounding one’s body is considered higher.108 Although the Ninth Circuit in Arnold has
analogized laptop searches to all other searches of personalty, other federal circuits may agree
with Judge Kozinski in holding that the government owes greater deference to the privacy interest
surrounding laptops.
In addition to privacy interests, courts have taken a range of other concerns into account when
determining whether reasonable suspicion must justify a warrantless border search. For example,
when courts have conducted border search analyses, they have frequently considered potential
harms resulting from illegal materials smuggled into the United States through laptops and
electronic storage devices. As stated in Ramsey, “The border search exception is grounded in the

102 Id. at § 8.4(4).
103 Id. at § 8.5(1)(a).
104 Id. at § 8.5(1)(e).
105 Id.
106 Id. at § 8.6(1).
107 Id. at § 8.6(2)(a).
108 Chase, 503 F.2d 571 (strip searches require reasonable suspicion); Montoya de Hernandez, 473 U.S. 531
(alimentary canal search justified by reasonable suspicion).
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recognized right of the sovereign to control ... who and what may enter the country.”109 Laptops
can present a challenge to the nation’s ability to control what enters its borders because the vast
and compact storage capacity of laptops can be used to smuggle illegal materials. In light of this,
courts have held that routine searches of laptops at the border may be justified because of the
strong government interest in preventing the dissemination of child pornography and other forms
of “obscene” material that may be contained in laptops.110 Another justification may be to
facilitate searches of laptops owned by suspected terrorists, which may contain information
related to a planned terrorist attack.111
On the other hand, if customs officials can conduct laptop border searches without the need for
reasonable suspicion, there is the potential for customs officials to conduct targeted searches
based on justifications prohibited by the Constitution. For example, if a customs official could
conduct a search without cause, it may be more difficult to detect unlawful bases for the searches
because the official would not need to explain why he conducted the search. Such concerns
suggest that resolving the issues surrounding laptop border searches will involve striking a careful
balance between national security and civil liberties.
The Ninth Circuit, by equating the privacy interest implicated in personal information with that
surrounding normal personal effects, has adopted a categorical approach to the border search
doctrine. The court has concluded that the search of all personal property does not require
reasonable suspicion unless the search is conducted in a manner that is destructive or particularly
offensive.112 So far, the Ninth Circuit is the only circuit to have explicitly stated that such
searches do not require reasonable suspicion. Whether other federal circuits adopt this approach
or, in the same vein as Judge Kozinksi, give credence to the notion that a heightened expectation
of privacy surrounds expressive materials, thus requiring reasonable suspicion before being
searched, is an open question.
Legislative Proposals
A bill introduced in the 111th Congress, the Securing our Borders and our Data Act of 2009 (H.R.
239), would prohibit laptop searches based solely on border search authority.113 The legislation
would establish “fundamental rules” prohibiting a federal border officer from searching or seizing
a “digital electronic device” or “electronic storage media” based solely on the power of the
United States to search and seize the effects of individuals seeking entry into the country. Instead,
the legislation would allow such searches only in cases where border officers have reasonable
suspicion that a device contains criminal evidence. Devices could be seized only if constitutional
authority other than border search authority provided a justification. The bill would direct the
Secretary of Homeland Security to promulgate rules regarding: maximum time periods during
which border officers can detain devices; owners’ rights to retrieve detained devices; and

109 Ramsey, 431 U.S. at 611.
110 See, e.g., New York v. Ferber, 458 U.S. 747, 765 (1982) (holding that child pornography does not enjoy First
Amendment protections because the government has a compelling state interest in preventing the sexual abuse of
children and that the distribution of child pornography is intrinsically related to that state interest).
111 See Ickes, 393 F.3d at 506.
112 Arnold, 533 F.3d at 1007-1008.
113 The Securing our Borders and our Data Act of 2009, H.R. 239, 111th Cong. (2009).
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strategies for maintaining the integrity of all information detained and shared with other
government agencies.114
The Border Security Search Accountability Act of 2009 (H.R. 1726) would mandate that the
Commissioner of Customs and Border Protection promulgate a rule with respect to the scope of
procedural and record-keeping requirements associated with border security searches of
electronic devices.115 The rule would require that commercial information be handled in a manner
consistent with all laws and regulations governing such information, that electronic searches be
conducted in front of a supervisor, that a determination of the number of days such information
could be retained without probable cause be made, that the individual whose information was
seized be notified if the information is entered into an electronic database, that an individual
receive a receipt if his device is seized during a border search, that an individual subject to a
border search of an electronic device receive notice as to how he can report any abuses or
concerns related to the search, that the rights of individuals with regard to border searches be
posted at all ports of entry, that a privacy impact assessment of the rule be made, and that a civil
rights impact assessment of the rule be made.116

Author Contact Information

Yule Kim

Legislative Attorney
ykim@crs.loc.gov, 7-9138

114 This legislation is identical to a bill introduced during the 110th Congress. See Securing Our Borders and Our Data
Act of 2008, H.R. 6702, 110th Cong. (2008). Another related bill introduced during the 110th Congress, H.R. 6588,
would have prohibited laptop searches based on the United States’ border search authority but permitted laptop
searches conducted under any other federal authority. See Electronic Device Privacy Act of 2008, H.R. 6588, 110th
Cong. (2008).
115 Border Security Search Accountability Act of 2009, H.R. 1726, 111th Cong. (2009).
116 This bill is similar to H.R. 6869, introduced in the 110th Congress, which would have directed the Department of
Homeland Security to issue rules regarding the scope and procedural requirements associated with border security
searches of electronic devices. See Border Security Search Accountability Act of 2008, H.R. 6869, 110th Cong. (2008).
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