August 11, 2008
School of Law Professor Larry Cunningham testified before the
Senate Judiciary Committee’s Subcommittee on the Constitution in
its hearing on “Laptop Searches and Other Violations of Privacy
Faced by Americans Returning from Overseas Travel.” Professor
Cunningham testified regarding the constitutionality of border
searches, concluding that citizens’ expectations of privacy are at
their lowest at the border. He noted the long line of Supreme
Court decisions upholding the right of the government to protect
itself at the border from the importation of dangerous, untaxed, or
illegal goods. He testified that the Supreme Court has
required some degree of suspicion only when the government conducts
a “non-routine search,” which case law has limited to invasive
searches of the body, such as strip searches, x-rays, and body
cavity searches. He contrasted a brief search of a laptop
with its seizure, concluding that probable cause should be required
if the government physically takes a computer and retains it for
some significant period of time.