[privacy] Border Searches: The asterisk on the 4th amendment

["Richard M. Smith" <rms () computerbytesman com>]

http://www.wired.com/politics/law/news/2007/06/laptopsearches
 

What's in a Laptop? Court Ponders Legality of Border Searches

Ryan Singel   <http://www.wired.com/services/feedback/letterstoeditor>
06.20.07 | 2:00 AM 

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 in nature." 

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
<http://www.acte.org/resources/press_release.php?id=91>  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. 

...

 

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