May 29, 2013 10:07AM

Applying the Fourth Amendment to International Travelers

I regularly cross America’s borders, so I’m happy that a new court ruling will make it harder for border agents to search and seize travelers’ computers.

In 1886, the U.S. Supreme Court essentially exempted border searches from the Fourth Amendment. Only in the most extreme cases, such as detaining or strip‐​searching a traveler, is “reasonable suspicion” of criminal conduct necessary.

Only once in decades of travel have I been forced to hand over my computer. But thousands of other Americans have had to do so over the years, and it is much worse when the government takes the computer for a “forensic” review elsewhere. 

However, in April, the Ninth Circuit Court of Appeals ruled, in U.S. v. Cotterman, that while a simple search involving a quick review of a laptop likely is constitutional, a more detailed review “transformed [the search] into something far different.” Thus, “reasonable suspicion” was required.

The dissenters complained about treating differently someone who hid digital child pornography on his computer and “hid” printed child pornography in his briefcase. But as I pointed out in my new Forbes online column, there are important differences:

One is that international travelers know their belongings are subject to visual search. A briefcase and printed materials also are inherently less secure against private snoops as well as government investigators than password‐​protected computer files.

Moreover, as the appellate majority observed, “The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information.” While it is easy to separate the business and personal as well as the innocent and incriminating among personal effects, it is not so easy to similarly divide computer files. Concluded the judges: “A person’s digital life ought not be hijacked simply by crossing a border.”

Very true.

Of course, Cotterman’s offenses were horrid. But the court concluded that “Reasonable suspicion is a modest, workable standard that is already applied.”

Catching criminals is important. However, it is a free society that we are protecting. Traveling internationally should not require sacrificing one’s basic freedoms.