By Ryan Singel
Is your laptop a fancy piece of luggage or an extension of your mind?
That's the central question facing a federal appeals court in a case
that could sharply limit the government's ability to snoop into laptop
computers carried across the border by American citizens.
The question, before the 9th U.S. Circuit Court of Appeals, arose from
the prosecution of Michael Timothy Arnold, an American citizen whose
laptop was randomly searched in July 2005 at Los Angeles International
Airport as he returned from a three-week trip to the Philippines. Agents
booted the computer and began opening folders on the desktop, where they
found a picture of two naked women, continued searching, then turned up
what the government says is child pornography.
In June 2006, a judge from the U.S. District Court for the Central
District of California threw out the evidence, finding that customs
officials must have at least "reasonable suspicion" to begin prying into
the contents of an electronic storage device, a decision the government
is now appealing.
"Electronic storage devices function as an extension of our own memory,"
Judge Dean Pregerson wrote. "They are capable of storing our thoughts,
ranging from the most whimsical to the most profound. Therefore,
government intrusions into the mind -- specifically those that would
cause fear or apprehension in a reasonable person -- are no less
deserving of Fourth Amendment scrutiny than intrusions that are physical
While it's not clear how many laptops are searched at the border each
year, both business and recreational travelers are increasingly toting
computers with them, complete with hard drives full of personal
pictures, confidential corporate documents and revealing internet logs.
An October 2006 survey of business travel executives revealed that some
companies were rethinking rules on proprietary information being stored
on traveling laptops, and 1 percent of the respondents reported they
had, or knew someone who had, a laptop confiscated at the border.
The reach of such searches will likely widen as more and more people opt
for smartphones, such as Apple's upcoming iPhone, which combine elements
of traditional computers with the voice capabilities of a cell phone.
The California decision is the first to challenge that trend, and it
makes laptops, and even USB memory sticks, very different from every
other item brought across the border, including luggage, diaries,
prescription drug bottles and sexual toys -- all of which customs and
border agents have been allowed to search without cause for years under
the "border exception" to the Fourth Amendment.
The government says the rationale behind that exception -- that border
agents are responsible for protecting the safety of the nation and
enforcing copyright and obscenity rules -- logically extends to laptops.
"For constitutional purposes nothing distinguishes a computer from other
closed containers used to store highly personal items," the Department
of Justice argues in its appeal brief.
Moreover, requiring government agents to have a reasonable suspicion
before searching a laptop will invite smugglers and terrorists to hide
contraband and evidence there, the government argues. "If allowed to
stand, the district court's decision will seriously undermine the
nation's vital interest in protecting its borders by removing the
significant deterrent effect of suspicionless searches," reads the
Arnold's lawyers, Kevin Lahue and Marilyn Bednarski, disagree, arguing
that it's not very difficult for law enforcement agents to come up with
"No ordinary traveler would expect their private files to be searched at
the border without any reasonable justification," they told the appeals
court. "The government's argument that a traveler can simply avoid
exposure by leaving the laptop at home is an oversimplification of its
function and role in daily life."
Lahue has support from the Association of Corporate Travel Executives
and the Electronic Frontier Foundation. The two groups submitted a
friend-of-the-court brief Tuesday arguing that suspicionless searches of
laptops are overly invasive, and that prior to the California ruling,
the government had no limits on what it could do when it seizes a laptop
and makes a copy of the hard drive.
Already travelers have reported customs agents seizing laptops, making
copies of the hard drive and returning the computers weeks later. That
practice scares the travel execs' association and the EFF, which argue
that under the government's reasoning, border authorities could
systematically copy all of the information contained on every laptop
computer and cell phone that crosses the border, without any court
"A suspicionless unrestricted search of a laptop computer is simply
electronic eavesdropping after the fact," the groups told the court.
"(It) is distinguishable from the forbidden general searches of Colonial
times only by the technologies involved."
The case's outcome is far from clear-cut, according to Lahue.
"A lot will depend on whether the court decides it's like searching a
piece of luggage or like a body-cavity search," Lahue told Wired News.
"A diary, even one that is labeled 'my secret sexual fantasies,' has
always been fair game."
The government's reply brief is due June 26, and the case will likely be
argued sometime in the fall.
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