Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Laptop searches – Is the U.S. government acting outrageously?

Cyndee and I participated on a panel about laptop searches at the recent American Bar Association International Law Section Spring Program. One of our fellow panelists let us know, in no uncertain terms, that he thought we were making a lot out of an issue that really was of limited significance - the likelihood of the electronic devices of an attorney being searched upon arriving in the U.S. were just not that great. Frankly, he is probably right to some degree, but the issue is still worth being concerned about in light of a couple of factors.

First, Customs is not bound by the Fourth Amendment requirement of probable cause. In fact, the officer conducting the inspection is not required to be able to articulate any reason for wanting to conduct the search, although in reality they aren't going to bother someone unless there is a good reason, such as a person is acting suspiciously (for example wearing a coat on a warm day, or exhibiting nervous ticks), or traveling on certain flights to or from destinations where certain behavior is typical, e.g. a single male returning from Thailand after being there for several weeks (child porn), or departing to the Middle East or Africa on a flight transiting through Europe (carrying cash or monetary instruments which need to be declared).

While it is true the men and women who work for Customs are overwhelming honest and trying to do a good job, there remain bad apples within the agency (just as there are within any large group of people) and the fear is the consequence of running into one of those bad apples, or someone just having a really bad day. UPI posted an article yesterday about the rise in arrests and convictions of Border Patrol officers, see www.upi.com/Top_News/2009/04/24/Arrests-of-US-border-agents-rising/UPI-98591240577024/. This "alarming" trend is the result of efforts by the Mexican drug cartels to compromise/infiltrate the agency.

Just because the likelihood is low that one will get stopped and searched does not mean, you should not be prepared. Knowing what to do in the face of an unjustified intrusion is nonetheless important. Are you prepared?

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