The Ninth Circuit Court of Appeals yesterday reversed a lower court's decision that laptop searches by border agents are a violation of the Fourth Amendment. From the WSJ law blog:
The backstory: In July of 2005, Michael Arnold, who was 43 at the time, was pulled aside for secondary questioning upon arriving at LAX from the Philippines. Customs agents checked out his laptop and, according to the ruling, found “numerous images depicting what they believed to be child pornography.”
Arnold was later charged with possessing and transporting child porn and with traveling to a foreign country with the intention of having sex with children. But lower court Judge Dean Pregerson of Los Angeles suppressed the evidence after finding that customs agents didn’t have reasonable suspicion to search the contents of Arnold’s laptop.
The Ninth Circuit, in an opinion penned by Judge Diarmuid O’Scannlain, reversed on Monday, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”
In reading the decision, my initial reaction is that while the conclusion is ultimately wrong (opening files on a laptop without reasonable suspicion is clearly a violation of the Fourth Amendment, regardless of what precedent rulings exist), the defendant chose an absolutely absurd defense. It is that absurd defense that is the basis of the court's decision.
Arnold based his defense on two arguments: one, that the laptop is an extension of the human body (since it contains data in the same way that the human mind contains ideas) and thus is protected from unreasonable searches, and two, that the laptop is analogous to a person's "home" (due to the capacity of the data storage and thus is protected from undue damage or destruction during a search.
Given the two prongs of this defense, I can understand how the Ninth Circuit would reverse.
I'm no lawyer, but in my opinion, a much more sound defense would have been that viewing personal data without cause or suspicion is an unreasonable search, even at the border. The Ninth Circuit's decision references United States v. Tsai (border searches of briefcases) and United States v. Ickes (border searches of vehicles, and electronic devices contained therein) as precedent that the defendant was not subject to unreasonable search.
Recall the words of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Apparently, the courts have ruled that "searches made at the border...are reasonable simply by virtue of the fact that they occur at the border", under the justification that "...the United Stats, as Sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity" (United States v. Flores-Montano). Similarly, the Supreme Court (United States v. Ramsey) has held that:
The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.
The issue, however, is that these searches are not appropriately bounded. While it is reasonable for a border agent to require a passenger to turn on a laptop to ensure that all its components are legitimately part of a laptop (e.g. the battery is not actually some sort of bomb), it is in no way reasonable for that border agent to rummage through the files contained on that laptop without reasonable cause.
Essentially, the justification by the courts here is that, since some things are illegal in the US but are legal elsewhere, any traveler could have legally obtained something that is illegal in the US, thus everything is subject to search at the border, and that the search takes place at the border establishes that such searches are reasonable.
Basically, this justification completely guts the Fourth Amendment. It is as if the courts are saying, "check your Constitution at the border."
Arnold should have challenged the unconstitutionally broad application of conferring reasonableness on searches simply by virtue of their occurrence at a border entry.
Another reasonable argument would have been the court's equation of a laptop to a traveler's luggage. The contents of luggage is in no way inherently analogous to the contents of a laptop (or of an MP3 player, a digital camera, or camcorder).
Oh, and as others have said: TrueCrypt. Either encrypt your entire drive, or put all private data inside an encrypted partition. If the courts won't uphold the Fourth Amendment, then perhaps the Fifth Amendment will still apply, and you'll still be protected from being forced to divulge your password for your encrypted data.
Volokh Conspiracy has a lot of interesting commentary. Dailybreeze also covers the story.
(H/T: PCWorld)
This is exactly the sort of thing we discussed in some of my classes. I’d say a warrant would be needed to “search” the laptop, but absolutely not needed to simply determine if the laptop was indeed a functioning laptop, and not a bomb or drug/contraband-smuggling device. And even that only involves a direct examination of the physical pieces, and NOT what is actually stored IN the laptop.
I mean, if the guy had an inappropriate image as his wallpaper, that was easily and immediately viewed upon turning the laptop on? MAYBE a more in-depth search could be performed without a warrant. Maybe.
Oh, and inappropriate as in child p^rn. Something obviously illegal.