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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. 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.

Related Legislation:
• H.R.239
• H.R.1726

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