Importance of Scope in Laptop Searches

In U.S. v. Arnold, the court lists four categories of materials that it had previously ruled searchable at the border without particularized suspicion: (1) the contents of a briefcase and luggage; (2) a purse, wallet or pockets; (3) papers found in containers such as pockets; (4) pictures, films and other graphic materials. Short of physical intrusiveness (such as a cavity search), the only way a search can be held as illegitimate is if it results in the destruction of property or if it is carried out in a particularly offensive manner. The court then holds that, because a search of a traveler’s laptop contents does not offend any of these three limitations, the search requires no particularized suspicion and is upheld.

This is a clear case of old law simply not mapping onto the digital world. While exceptions are made for “destruction of property” and “offensive nature of search,” there is no mention of scope in established border search doctrine. Prior to personal, portable electronic devices, there were significant physical limitations on the sheer volume of information that could be gleaned from an airport search. Indeed, it is very revealing that the Court’s example of an extreme informational scope is a “sophisticated executive with a locked attaché case.” Before portable electronic devices, a briefcase would likely be the most personal information that an individual could carry onto a plane.

However, it is rather self-evident that laptops, i-pods, cell phones and the like have drastically altered the implications of airline border searches. While Arnold’s contention that the laptop is akin to a “home” or the “human mind” is misplaced (it seems unlikely that the court would consider a laptop a “home” if they would not consider a “mobile home” as such), this bizarre construction calls further attention to the significant void in border search doctrine with regards to portable electronic devices. A laptop, in its capacity to hold nearly limitless amounts of personal information, is in a completely different category than papers, briefcases or any other pre-digital analogue.

Therefore, rather than attempting to map this case onto existing law through examining the applicability of the afore-mentioned three restrictions on border searches, the court would have be better served to consider the true scope of a laptop search and its implications for privacy concerns. As revealed by the behavior of the agents in this case (clicking on a folder of pictures labeled “Memories”), even cursory searches can reveal detailed, extensive, personal information. Also worth mentioning is the fact that individuals often have no choice but to bring these items along, and thus subject them to a search, as they play an indispensable role in everyday life for most Americans.

Given these considerations, perhaps a “reasonable suspicion” requirement would be appropriate for the examination of electronic devices during a border search. Or perhaps the court would find that national security interests do in fact outweigh privacy concerns. Nevertheless, it seems imprudent and irresponsible to view these searches only in light of outdated law, rather than fully considering the true scope and implications of laptop searches.