The Long Arm of the Law: The DOJ’s Efforts to Reach Beyond U.S. BordersBy Krystal Bowen
The U.S. Department of Justice (DOJ) has turned up the heat in ongoing investigations of foreign companies by detaining corporate officers and directors as they have arrived at United States airports on business. Foreign executives of companies on the DOJ’s radar traveling to the United States on business have faced questioning by authorities, search and seizure of their documents and personal electronic equipment—including laptops and Blackberries—and service with grand jury subpoenas.
The U.S. government has placed increasing emphasis on reaching beyond its borders to prosecute foreign corporations and individuals accused of violating U.S. laws. And with its ever-expanding jurisdictional reach, the DOJ has employed ever-expanding means of gathering evidence against its targets. This article examines two of those methods: border searches of electronic devices and border watches.
Border Searches of Laptops and Other Electronic Storage Devices
Searches of international passengers at American airports are considered border searches because they occur at the “functional equivalent of a border.”  Recognizing the government’s “inherent sovereign authority” to protect its territorial integrity, courts have routinely permitted the warrantless search of baggage of arriving international travelers. 
Courts have long held that the Fourth Amendment permits border searches—conducted without particularized suspicion—of closed containers and their contents, including, but not limited to, a traveler’s briefcase, luggage, purse, wallet, pockets, films, and other graphic materials.
With more passengers traveling with laptops and other electronic storage devices containing voluminous amounts of business and personal information, it was only a matter of time before the courts would have to address the government’s ability to conduct warrantless border searches of these machines.
Recently, in United States v. Arnold,  the Ninth Circuit joined with the Fourth Circuit (the only other circuit to address the issue) in holding that the warrantless, suspicionless search-and-seizure of laptop computers and other electronic storage devices is permissible at the border.
In Arnold, defendant Michael Arnold was selected for secondary questioning after arriving at Los Angeles International Airport from the Philippines. During questioning, Customs and Border Patrol agents inspected his luggage, which contained his laptop computer, a separate hard drive, a computer memory stick, and six compact discs. After turning on Arnold’s computer, agents opened two folders that appeared on his desktop and found photos of two nude women. Further inspection of the computer by special agents with the U.S. Department of Homeland Security’s Immigration and Customs Enforcement led to the discovery of child pornography. The agents seized the computer and storage devices but released Arnold. Subsequently, they obtained a warrant for his arrest.
Arnold filed a motion to suppress, arguing that the government conducted the search without reasonable suspicion. The district court granted Arnold’s motion, holding that reasonable suspicion was needed to conduct a search of the laptop and that the agents failed to meet their burden of establishing such suspicion to search.
The Ninth Circuit disagreed with the district court and reversed the motion, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”  In reaching their conclusion, the three-judge panel expressly rejected the defendant’s argument that laptop searches are different from border searches of other luggage because of the large amount of data (including the storage of personal documents) they can hold. Likewise, the court rejected the defendant’s argument that First Amendment considerations warranted an exception to the border search doctrine for “expressive material.” 
Arnold and United States v. Ickes both deal with routine border searches, presumably in the interest of national security, followed by the subsequent discovery of child pornography. There has not yet been a case, however, that tests the constitutionality of the government’s ability to conduct such laptop searches as an affirmative information-gathering tool in an ongoing criminal investigation, as was done in connection with an investigation into a foreign company through the arrival of its business executives in the United States. The government’s interest in developing evidence in a routine criminal case is arguably quite separate and distinct from its interest in protecting territorial integrity, which forms the basis for the border search doctrine. And what about attorneys whose laptops contain privileged information? Or international business travelers whose laptops contain trade secrets or other confidential material? What restrictions, if any, apply to these types of border searches of laptops? The answers are uncertain, but the concern among international travelers is mounting.
In February, two organizations—the Electronic Frontier Foundation and the Asian Law Caucus—together filed a lawsuit against the Department of Homeland Security (DHS) to determine the scope of border searches of electronic devices, stating that the DHS has denied them access to its records about its policies for conducting such searches. 
Congress has also stepped into the debate. Amid growing concern over these issues, in June, the Senate Judiciary Committee’s subcommittee on the Constitution conducted a hearing to examine the implications of border searches of laptops entitled “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel.” Although no action has yet been taken, U.S. Senator Russell Feingold (D-Wis.), who convened the Senate subcommittee hearing, is considering legislation to require reasonable suspicion for border searches of electronic devices.
So while the debate rages on, two things are abundantly clear: (1) with the DOJ’s search of the executives’ electronic devices in an ongoing criminal investigation, the government has added another weapon to its arsenal for gathering evidence of international crimes; and (2) given the current state of the law, international travelers with electronic devices containing confidential, proprietary, privileged, or personal information must give careful consideration to the propriety of traveling with that much “baggage.”
Border Watches and Red Notices
Increasingly, the DOJ is relying on greater cooperation between international authorities in investigations that extend beyond U.S. boundaries. But where those efforts fail, the DOJ is employing other means to achieve its desired goal.
It is not just by sheer coincidence that DOJ agents, with subpoenas in hand, happen to be at the same international airports as business executives. These days, the DOJ leaves little to chance. Particularly with respect to antitrust crimes, but also with other types of crimes as well, the DOJ has increased its use of border watches to detect the entry of foreign witnesses and subjects of investigations into the United States. When such an individual is detected, the DOJ typically seeks to interview them and/or serve them with a subpoena for testimony before the grand jury. Then, if that individual gives false information in an interview in the United States, leaves the country before providing grand jury testimony, or fails to return for grand jury testimony, the witness faces immediate arrest and prosecution by the DOJ for false statement or obstruction offenses. 
Likewise, in antitrust cases since 2001, the DOJ has employed a policy of placing indicted fugitives on the Red Notice list maintained by the International Criminal Police Organization (Interpol). In the United States, authority for Interpol functions rests by law with the U.S. Attorney General. The U.S. National Central Bureau (USNCB) is an office under the direction of the Departments of Justice and Treasury. The USNCB serves as a police-to-police communications and intelligence network for both American and foreign police seeking assistance in criminal investigations that extend beyond their national boundaries. The Red Notice—also known as an International Wanted Notice—enables member countries to inform their global counterparts that a warrant has been issued for a person whose arrest is requested with a view toward subsequent extradition.
Every extradition treaty limits extradition to certain offenses. As a corollary, all extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted unless the offense was committed after the fugitive's extradition or the fugitive remains in the jurisdiction after expiration of a “reasonable time” (generally specified in the extradition treaty itself) following completion of his or her punishment. The DOJ has made clear that it will vigorously seek to extradite foreign defendants apprehended through an Interpol Red Notice. 
Border watches and Red Notices have as their main objective the detention and/or arrest of individuals allegedly involved in international criminal investigations. While a border watch may have as its effect a limitation on an individual’s travel to the United States, Red Notices go the next step and serve to limit an individual’s travel in many countries throughout the world. For most executives of both foreign- and U.S.-based companies, neither is a desired result.
The DOJ is increasingly employing border searches of electronic devices and border watches in order to investigate and prosecute foreign corporations and individuals for alleged violations of U.S. law. How far the courts will allow the DOJ’s ever-longer prosecutorial reach remains to be seen. Until that is known, however, foreign companies must take appropriate steps to safeguard the confidential, proprietary, or privileged information stored in the electronic devices of traveling employees.
Krystal Bowen is a partner at Bingham McCutchen LLP in San Francisco, California.
- Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).
- See United States v. Flores-Montano, 541 U.S. 149, 153, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004).
- 523 F.3d 941 (9th Cir. 2008), petition for rehg en banc filed, No. 06-5058 (9th Cir. June 2, 2008).
- Id. at 946.
- Id. at 947.
- Id. at 948; see also United States v. Ickes, 393 F.3d 50, 506–08 (4th Cir. 2005) (Holding that warrantless search of the defendant’s laptop and computer disks in a van at the U.S.-Canadian border was permissible under the border search doctrine and rejecting the defendant’s argument based on the First Amendment that a higher level of suspicion is needed for searches of “expressive material”).
- See Asian Law Caucus v. U.S. Dept. of Homeland Sec., No. CV-08-0842 (N.D.N.Y. filed Feb. 7, 2008).
- See Scott D. Hammond, “Charting New Waters in International Cartel Prosecutions,” March 2, 2006 (speech delivered at ABA National Institute on White Collar Crime).
- See id.
- November 17, 2008 – Good article. The citation to Ickes should be 393 F.3d 501.