In a decision likely to again cause the hair on the back of business travelers' necks to stand on end, the Ninth Circuit Court of Appeals on April 21 issued a decision which confirmed what other courts have also decided: A Customs official at a border may “inspect” a laptop computer and does not need probable cause before doing so. The word inspect was put in quotes because frankly, Customs was allowed to do much more than just look at the physical laptop.
The case is U.S. v Arnold, No. 06-50581, D.C. No. CR05-00772-DDP, and the facts are all too familiar. A traveler returning to the United States was asked by Customs to boot-up his computer as a means to make sure it was a real computer. A subsequent search found images of nude, underage women and the traveler was indicted on child pornography and other charges. The defendant sought to suppress the evidence arguing there needed to be a reasonable suspicion to conduct the search. The federal government countered no reasonable suspicion was required and even if it was, one was present here. The district court granted Arnold’s motion to suppress and so the government appealed. In its latest decision, the supposedly very liberal Ninth Circuit agreed with previous decisions from other courts which have consistently given Customs the right to search laptops and other personal electronic storage devices without probable cause. Clearly, few of us have any sympathy for the Arnold circumstances. The more pertinent question is what does this unfettered right of Customs to inspect our electronic devices mean to international traders when they travel?
One is hard-pressed to find a laptop today which does not contain at least some proprietary business information. It used to be the worry was information becoming compromised because the computer fell into the wrong hands. Now there is another level of concern. While no one is suggesting Customs officers intend to improperly share the information they find with outside parties, the fact remains in many airports the initial inspections are done is open areas where anyone can observe by simply walking by and, because of the surroundings, any passer-by can also overhear the discussions taking place between Customs officers and between Customs and travelers during some parts of these inspections/interrogations because they occur initially in open-air environments.
While the facts in the Arnold case did not involve this, in many instances, Customs inspectors insist the traveler provide his or her user name and password so the computer can be booted-up or certain accounts or programs accessed, such as Internet search histories. What third parties might be standing around who could view that data as Customs scrolls through pages? Perhaps more perplexing is the situation where a computer is detained but the traveler is allowed to proceed and the computer goes into limbo. It is not seized, nor is it returned. What is the business owner to do in those circumstances? Who can you call? How do you get the computer back? What happened to the data on the hard drives? Was it copied? What was done with those copies? Who was given access? Has it been made part of the traveler’s permanent record? How will the government use that data?
We know from general press stories the U.S. government is trying to get all its records into one useable database or at least into multiple databases that can talk to each other. In some cases, the justification for doing so is to minimize misidentification of employees or other seemingly legitimate immigration reasons, but at the same time, we are all still smarting from Homeland Security’s aborted attempt at the Global Data Exchange (GTX), a proposal that companies provide a third-party vendor with their sourcing and related details at time of order placement and then additional data through the process from when the goods are made, to when they are shipped and finally when they are cleared and delivered, and all that data would be available to any authorized party, read: Customs officials throughout the world. GTX became a non-starter for a host of reasons, including the lack of clearly articulated means to protect business proprietary information. It is one thing for Customs to find child pornography on an electronic device, but what happens where there is no criminal violation?
For those who think it is only criminals who get stopped, think about this real case. A fellow went on vacation with a couple of his buddies. He took with him two computers. One was from his job and the other was his personal computer. The friends went to a Caribbean island where they shared a hotel room. Upon their return to the States, this fellow’s two computers were inspected by Customs. He was required to provide his user name and password to get the computers booted-up and during the inspection, Customs found photos of young women in alluring poses on the business computer. While there was no evidence the women photographed were minors or that anything untoward had occurred, Customs decided to keep the computers for further investigation. This fellow was emphatic that he did not download the pictures. Could they have been on the computer when it was given to him? Could his friends have downloaded them? We never did find out.
We do not know what else Customs did by way of an investigation, but can tell you, Customs wanted to know who else had access to the business computer. In a total breach of company policy, it turned out this fellow often left the computer on and stepped out of his hotel room for short periods of time while his friends were still in the room. After nearly two months, Customs finally returned both computers because frankly, they had no case. However, in the meantime, a traveler who had done nothing wrong from an entry or import perspective, still had to go to his employer and sheepishly explain what happened. Fortunately, this bad experience was short-lived, but it could have been much worse.
Many of us recall the situation a number of years back where a Customs lawyer traveled to Asia to visit a textile factory. While there, he took possession of production records needed to satisfy a particular port’s demand for such records. When the lawyer arrived at his port of entry, Customs took his briefcase and confiscated it and those records. Fortunately, the district court made clear to Customs that, in those circumstances, the attorney-client privilege applied and Customs had not taken proper steps to address the unique circumstances presented, but how often will that happen?
So, what are travelers to do? Remember, it’s not just your laptop. Any electronic device you carry with you is subject to inspection, such as cell phones, PDAs, and iPods. Here are some tips:
1) Only take what you really need, both in the way of devices and in the way of data. Any number of law firms and companies are requiring their employees to either leave all such devices home or at least, limit the data they take with them to that minimally needed on the devices with which they travel.
2) Make sure that whatever is on your devices you have backed-up on a separate device or hard drive and make sure that back-up device/drive is not with you.
3) Think long and hard about the data you have on your device. If the only place you have your personal finances is on your laptop, it is the wrong computer to take with you. Where do you store your user names and passwords? What about your address book?
4) Assume that whatever information comes into Customs’ possession, should your device get detained, will end up in a database and if there is a way to do so, that information will be used against you, which may mean nothing more than it will be used to validate what you are filing with the government in other contexts, e.g. your taxes or entries.
5) If you do get stopped, make sure to be polite and reasonably cooperative. You are entitled to ask for the badge number of the Customs official conducting the inspection/interrogation, especially if you think that person is out of line.
6) You are also within your rights to insist a supervisor become involved if you think the individual inspector has acted inappropriately. Of course, you only want to go this route if you are absolutely sure the inspector is being unnecessarily rude or unprofessional; yes, some of that is an investigatory technique. Just because you don’t like the questions or think the Customs official is asking too many prying questions is not a good reason to ask for a supervisor. When that supervisor arrives, you must be able to objectively articulate, as calmly and coolly as possible, why the inspector was out of line.
7) Keep in mind that if you insist on getting a supervisor involved, there are subtle ways in which Customs can make you pay, such as making you sit and wait for a long period of time, so be patient, be polite, make sure you can prove the devices are yours and they are “clean,” and above all, make sure all your declarations to Customs are complete and accurate.
If you have been stopped by Customs and had your luggage searched once, the odds are it is probably nothing more than a routine action. However, if you have your electronic devices searched and something is found, you can bet that each time thereafter you come into the country, Customs will search everything you have with you, including your electronic devices, so better safe than sorry!
Susan Kohn Ross is International Trade Counsel at Mitchell Silberberg and Knupp LLP in Los Angeles. She is also the co-founder of http://www.tradelawyersblog.com/ and co-creator of CTPAT Made Easy, Inc. (http://www.ctpatmadeeasy.com/), an Internet-based program simplifying the application process for the Customs-Trade Partnership Against Terrorism. She can be reached at 310-312-3206 or skr@msk.com.
Journal of Commerce
