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US court waves through border laptop searches




US court waves through border laptop searches
US court waves through border laptop searches



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http://www.theregister.co.uk/2008/04/22/us_laptop_ruling/ 

By Kevin Fayle in San Francisco
The Register
22nd April 2008 

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 [1], 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.


Reasonable suspicion

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 [2] 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 =E2=80=93 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" =E2=80=93 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 =E2=80=93 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 =E2=80=93 but not 
necessarily illegal =E2=80=93 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. =C2=AE

[1] http://preview.tinyurl.com/3nsff (.pdf) 
[2] http://www.theregister.co.uk/2008/03/24/us_border_control_laptop_searches/page3.html 


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