Court allows unlimited, warrantless border searches of computers
On July 24, a unanimous three-judge panel of the 9th US Circuit Court of Appeals ruled that US customs agents may conduct warrantless, random searches of travellers' laptops regardless of reasonable suspicion
or probable cause.
The ruling came in response to an appeal by Stuart Romm, a business traveller arrested on February 1, 2004, at the Seattle-Tacoma airport by border guards who used EnCase software to scan the hard drive of his
laptop. Denied entry into Canada when agents discovered he was on probation in Fort Lauderdale, Romm had been turned back at the Kelowna, British Columbia, airport and returned to US territory. Canadian officials informed
US customs that Romm's laptop might contain contraband image files.
omm, 54, a former attorney and administrative law judge from Brockton, Massachusetts, had been extradited to Florida in 1997 following an America Online chat-room flirtation with a "14-year-old boy" who was in fact
a detective from the Broward County Sheriff's Office. The nonexistence of the "victim" notwithstanding, Romm had been convicted in 2000 of two counts of "promoting sexual performance by a child" and one count
of "child exploitation by means of a computer," and sentenced to ten years' supervision.
In January 2004, having found a new job, Romm travelled to Nevada for a training seminar sponsored by his employer. During his stay at a Las Vegas hotel, he relieved tension by surfing the internet, sometimes
visiting pornographic websites. He says he masturbated at least twice to images on his screen, but saved none of them. At the end of the week-long training session, his business itinerary called for a trip to Canada.
According to the Immigration and Customs Division of US Homeland Security, the EnCase forensic analysis turned up 42 pornographic pictures of minors that Romm had viewed but not saved for future use. Most of
the images were in his browser's internet cache, an area where data is automatically stored to facilitate future access to previously visited websites.
Romm, perhaps unaware that material downloaded and then deleted-- or viewed in passing at a website-- remained present on his hard drive, denied possessing any child pornography. He did, however, admit to having
had porn "relapses" during his period of probation.
Romm was charged with "knowingly receiving and knowingly possessing child pornography." During his subsequent trial, the 42 images obtained in Homeland Security's warrantless search were ruled admissible as
evidence. Romm was convicted and sentenced to two concurrent prison terms of 10 and 15 years.
He appealed his conviction, primarily on grounds that the evidence against him was obtained without a warrant, in violation of the Fourth Amendment's protection against "unreasonable searches and seizures." There
was also, among other issues, the question of whether he could be found guilty of "knowingly receiving and knowingly possessing" porn he had merely viewed and then jettisoned.
Writing on behalf of the 9th Circuit Court, Judge Carlos Bea called the search of Romm's laptop "permissible" under a "border search doctrine" that seems to give customs officials carte blanche to ignore
constitutional rights at every point of entry into the US. Bea cited as precedent the
US v. Montoya de Hernandez decision of 1985, in which anti-drug fervor led a 6-3 majority of US Supreme Court justices to place their imprimatur
on border-crossing cavity searches without warrant or probable cause.
Bea's 25-page opinion asserts that "searches made at the border are reasonable simply by virtue of the fact that they occur at the border." Dismissing Romm's protestation that he could not have been carrying
contraband obtained in Canada, since he was not allowed to enter Canada at all, Bea not only affirms but broadens the border-crossing exception to the Fourth Amendment. "For Fourth Amendment purposes," he states,
"an international airport terminal is the 'functional equivalent' of a border." Bea's argument invites questions about what other venues Homeland Security might call "functional equivalents" of borders.
Warrantless searches have long been held permissible under US law in certain circumstances, such as police stop-and-frisk procedures, searches conducted in the course of an arrest, or searches of vehicles. In
these instances, however, the element of "probable cause" that a suspect might, for example, be about to commit a felony or destroy evidence must be present.
In the 1980s, however, during the Reagan-era "War on Drugs," the Rehnquist Supreme Court deeply eroded the need for "probable cause" in situations that included border crossings. In
US v. Villamonte-Marquez (1983), the high court upheld US customs agents' practice of stopping and boarding vessels at random in US territorial waters. In the Montoya de Hernandez decision, the court approved border guards' draconian treatment of
a woman thought to be smuggling drugs simply because she was arriving in the US from Bogota, Colombia. (Cocaine-filled balloons were, in fact, found in her digestive tract.)
Dissenting, Justice William Brennan called the agents' tactics "the hallmark of a police state." Joining Brennan, Justice Thurgood Marshall wrote, "Nothing in the underlying premise of the 'border exception' supports such
a ring of unbridled authoritarianism surrounding freedom's soil."
In addition to affirming the extraconstitutional police powers of border guards, the 9th Circuit Court sustained Stuart Romm's convictions for "knowingly receiving and knowingly possessing child pornography."
Romm, who seems never to have had sexual contact with an actual minor, remains in Ray Brook Correctional Institution, a federal prison in upstate New York, where his earliest projected release date is 2017.
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