US court waves through border laptop searches
Your laptop ain't your home and it ain't your mind, either
Contrary to what some of you may believe, one cannot live in a laptop, according to the Court of Appeals for the Ninth Circuit in the US.
In a recent ruling, a three-judge panel of that court determined that border agents could examine the contents of a laptop without reasonable suspicion of wrongdoing. As part of that decision, the court rejected the defendant's contention that his laptop was analogous to his home or his mind because of the amount of storage and type of personal content that could be held there.
The case began when Michael Arnold touched down at LAX after a trip to the Philippines. While going through customs, a US Customs and Border Patrol Officer selected him for secondary questioning.
Inside his luggage, Arnold had a laptop computer, a separate hard drive, a USB flash drive and six CDs. The officer asked Arnold to turn the computer on, then discovered pictures of naked women in folders on Arnold's desktop.
Special agents of the Department of Homeland Security seized the laptop and storage after finding images they believed constituted child pornography, but released Arnold. Two weeks later, they returned with a warrant for his arrest and charged him with multiple counts relating to child pornography.
Border and customs agents in the US have broad authority to conduct searches when people try to enter the country. They operate outside the Fourth Amendment's warrant requirement, a feature of executive power known as the "border search exception", although they are still subject to the Amendment's reasonableness requirement.
Courts have long held that random searches of closed containers and their contents at the border are reasonable. The Supreme Court has determined, however, that interests of human dignity and privacy require a reasonable suspicion before intrusive searches of a traveler's person.
Arnold argued at trial that searching his laptop was the same thing as searching his person, since laptops contain personal information such as emails, web surfing histories and personal documents.
The trial court agreed, stating that electronic storage functions as an extension of human memory; thus a search of stored personal data constituted an intrusion into the mind. The court suppressed the evidence seized from Arnold's laptop, and the government appealed.
(Mark Rasch of SecurityFocus has an excellent analysis of the parties' positions at trial, and the issues underlying border searches of laptops generally.)
The Ninth Circuit disagreed. The panel rejected the trial court's figurative view of digital storage and adopted a literal view: laptops and storage devices are personal property, pure and simple. As such, they are subject to searches at the border with no reasonable suspicion.
In addition, the Ninth Circuit rejected Arnold's argument that the search proceeded in a particularly offensive manner – an exception to the government's border search powers.
Arnold equated his laptop with his home, since it enables the storage of large amounts of personal documents, the physical equivalent of which could only be stored at a residence. Since homes receive great protection under the Fourth Amendment, Arnold contended that the search of his laptop was particularly offensive.
But the court wasn't buying it, and based its rejection on "the simple fact that one cannot live in a laptop" – a phrase destined to find a place in the annals of cyberlaw lore.
In rejecting Arnold's case, the Ninth Circuit advanced a trend that has seen laptops receive less and less protection at the border. In an earlier Ninth Circuit case, the court first applied the border search exception to laptops and determined that border officials were justified in conducting a warrantless search.
In a case out of the Fourth Circuit, the court agreed with the Ninth Circuit, and also held that there was not First Amendment shield to the border search exception when applied to laptops.
Neither case dealt with the question of whether or not a laptop search requires reasonable suspicion, however, since both courts determined that the searching officers had sufficient suspicion to conduct the search – regardless of whether it was necessary or not.
Now, the Ninth Circuit has removed the possibility of a reasonable suspicion protection for computer searches at the border, and opened up the possibility that any traveler could have their computer randomly searched when entering the US.
This raises troubling possibilities. Of course, it is highly desirable to catch people bringing child pornography across the border, but random searches of innocent travelers could reveal sensitive – but not necessarily illegal – personal information.
This decision equates computers to a box or a briefcase, but not many briefcases allow you to store all of your written correspondence, family pictures, passwords, credit card numbers, tax returns, medical information, work product, trade secrets, personal journal entries, etc. in the same place.
Even if a person has nothing to hide, it is disconcerting that border agents can view so much personal information about them simply because they brought it across a border.
There's a possibility that this decision could be overturned upon rehearing by the entire court, and there's even a remote possibility that the issue will eventually make it to the Supreme Court. Neither of these is likely in the near future.
So for the time being, if you plan on crossing the US border into the Ninth Circuit, it's probably best to just leave the laptop at home. ®