As a lawyer who often travels, I and thousands of lawyers like me, take their laptops everywhere. We actually don’t get any days off; when we are on vacation or on a business trip on behalf of another client, our remaining clients never want to be believe that their chosen legal representative is beyond a phone call or an email. They most certainly want to know that that certain “matter” that might need a tweak why the attorney is away will not get ignored on the journey, and God help the lawyer if an emergency arises and the client desperately needs a matter handled immediately and personally. 24/7/365 has been my lot for many years, interrupted by surgery now and again, but even that isn’t something that lets a client feel good about your not being there. And so our laptops are often filled with privileged communications – under the so-called and statutorily sanctioned attorney-client privilege – and so we guard those computers as if our lives depended on their security. And those laptops are also a key to our vast reservoir of stored emails, even if they are not on the computer itself.
So when the Federal Ninth Circuit (Arnold vs. USA, involving child pornography) recently reversed a trial court’s challenge to border guards having the right to confiscate (for a couple of days) any computer crossing our border in order to scan the contents, shudders of fear coursed down my body. Hey I want to stop traffickers in kiddie porn and terrorists just as much as anyone, but hey… there are other risks to our fundamental rights at stake. “The ruling reversed a lower court’s finding that laptops are ‘an extension of our own memory’ and too personal to allow government searches without some reasonable and articulable suspicion.” New York Times, November 15th. I cross borders all the time with my laptop; could client confidences become divulged as a result of such an action? How could I stop such an event from happening? The policy was born in the Bush administration as a part of the war on terror, and the Obama administration kept the rule intact adding only that a supervisor had to make the requisite decision to examine the computer.
As you can tell, I’m less concerned with my own privacy than I am with the privileged information with which I have been entrusted by clients. I don’t feel that my travels should prejudice their legal rights, but as of now, the U.S. government seems to disagree with my position. Hopefully, this anomaly will be reviewed by the U.S. Supreme Court or perhaps be checked by an act of Congress before such a decision becomes necessary. For me, the only consolation is that such searches are rare: “Although the number of travelers whose devices are searched is small compared with the many millions who cross American borders each year, the problem is real. Between October 2008 and June 2010, mo re than 6,600 travelers — nearly 3,000 of them American — were subjected to such searches, according to government records released in response to a Freedom of Information request.” The Times.
Probable cause, a warrant, an “articulable suspicion” or something legally relevant would be nice. And if the laptop is actually being taken for a more than a quick examination, shouldn’t the standards be even higher? Shouldn’t the fruits of such searches be limited to avoid violating legally sanctioned rights? “The American Civil Liberties Union has now filed a lawsuit challenging the policy on behalf of press photographers, criminal defense attorneys and a doctoral student in Islamic studies whose laptop was searched and confiscated this spring.” The Times. And there is a billed stalled in Congress – Travelers’ Privacy Protection Act – that would require some reasonable suspicion of illegal activity to trigger a right to search a laptop. Let’s nab criminals and terrorists by all means, but let’s also be aware of society’s Constitutional rights to basic privacy just as well… searches at the border should not be open for all matters at all times; a Constitutional balance is required.
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