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Happy New Year! Will your laptop, iPhone, iPad be confiscated at the border?

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What a way to start the new year, travelers. Today's New York Times reports that Judge Edward R. Korman of the Federal District Court for the Eastern District of New York has ruled that "the government does not need reasonable suspicion to examine or confiscate a traveler’s laptop, cellphone or other device at the border." Really, though, a lot of that's settled law.

Wiki cites United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports.[2]

The new twist might be considered the confiscation part that's now been fleshed out.

As a criminal defense lawyer, I have spent many a case hashing out in court what "reasonable suspicion" is. It is less than what is called "probable cause," the concept that something illegal has or is about to occur. Reasonable suspicion is that the stopping/searching/seizing/arresting officer must be able to articulate something that's rationally a reason why a crime might be occurring. Sadly for civil liberties, the officer doesn't have to be correct in the end for it to be "a good search".

Articulable: The officer has to be able to state specific facts that would rationally support the stop/search/seizure. They can't be, "He looks suspicious," or "All people wearing leather jackets are trouble," or "She's not the race we normally see in this neighborhood."

The whole search depends on a totality of the facts: a person wandering around near doors with a coat hanger at 3 am is different than a person at a dry-cleaners with a wire hanger at 3 pm.

Is this the end of the line for travelers getting their electronics seized? Well, a person with standing -- the case is his own -- could bring it up the court system to possibly even the Supreme Court, if the court would grant certiorari (hear the case). However, that's not a given and most cases take hundreds of thousands of dollars to take it that far.

Congress could pass specific laws to protect travelers and traveling journalists. That would be a wise thing to do, to protect and encourage Free Speech and lucrative trade missions. When we try to get international travelers here, we have our own brand. Just like there's a "Choose Chicago," to lure travelers, there's a "Brand USA." Brand USA ought to lobby on behalf of travelers, even if some political jurisdictions are hard-headed about it.

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