45 Pages Posted: 8 Oct 2008 Last revised: 27 Feb 2014
Date Written: March 6, 2009
Should customs officers be able to search laptop computers at international borders the same way they inspect suitcases and packages? This short article - prepared for the Richmond Law Review's 2009 Allen Chair Symposium - argues that suspicionless border searches of laptops and other electronic storage devices generally are permissible under the Fourth Amendment. It begins by surveying the competing interests that are implicated by laptop searches at the border, including the government's need to combat terrorism and child exploitation, as well as travelers' interests in privacy and free expression. Next, the article discusses the Supreme Court's border-search doctrine. "Non-routine" border searches (e.g., invasive searches of the body) are subject to the reasonable-suspicion standard, but "routine" searches (e.g., searches of property) need not be based on any individualized suspicion at all. The article then considers how the border-search doctrine might apply to laptops. Lower courts generally hold that customs can inspect laptops without reasonable suspicion, and this consensus is essentially correct. To be sure, laptops differ from other kinds of property: They contain a greater volume of material, the data they store is intensely personal, and digital searches can leave a permanent copy of the data in the government's hands. But those differences generally do not justify a special exception to the border-search doctrine. In fact, laptop searches have the potential to be less, not more, intrusive than traditional border inspections of physical objects. Finally, the article discusses possible legislative or administrative reforms that might better balance travelers' interests against the government's needs. It might be appropriate to protect laptop owners' privacy interests at the border, not through traditional "collection limits" (which restrict the government's ability to gather information in the first place), but with "use limits" (which restrict the government's ability to share or otherwise employ the information it does gather).
Keywords: border-search doctrine, national security, homeland security, Fourth Amendment, right to privacy, search and seizure, terrorism, Customs and Border Protection
JEL Classification: H56
Suggested Citation: Suggested Citation
Sales, Nathan Alexander, Run for the Border: Laptop Searches and the Fourth Amendment (March 6, 2009). University of Richmond Law Review, Vol. 43, No. 3, pp. 1091-1134, March 2009; George Mason Law & Economics Research Paper No. 08-58. Available at SSRN: https://ssrn.com/abstract=1279683