Laptop Searches – Are They Legal?
Posted by shadmia on January 8, 2008
If you are going through customs, does the government have the right to search your laptop? If you have an encrypted file on your hard drive can, you be forced to give up the password? Are computers “extensions of our memories” or just electronic “containers”? These questions are under judicial review in a number of cases involving child pornography found on laptops during routine customs searches.
Michael T. Arnold
Michael T. Arnold arrived in Los Angeles on a flight from the Philippines carrying his laptop with him. The customs officer decided to check out the hard drive. He came across two files named “Kodak Pictures” and “Kodak Memories”. He clicked on them and they revealed child pornography. Arnold was arrested.
Before the courts, the government contended that they have every right to search each laptop coming into the country, whether or not they have any suspicions. It is just like going through someone’s suitcase.
Judge Dean D. Pregerson of Federal District Court in Los Angeles disagreed as he suppressed the evidence against Michael Arnold.
“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”
Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and information about reporters’ “confidential sources and story leads.”
Nevertheless the judge’s opinion seems headed for reversal. One appeals court sided with the government and another ruling appears to be headed the same way, swayed by the argument that:
A computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form would doubtless be subject to search.
Jennifer M. Chacón, a law professor at the University of California says searching a computer “is fairly intrusive.” Like searches of the body, she said, such “an invasive search should require reasonable suspicion.”
The Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government’s ability to acquire information.
“Under the government’s reasoning,” the brief said, “border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign.” That is, the brief said, “simply electronic surveillance after the fact.”
Sebastien Boucher is a Canadian citizen living in New Hampshire. He was crossing the border by car when a customs officer noticed a laptop on the seat beside him. The officer asked Boucher if he had any child pornography on his computer. Boucher said he couldn’t be sure because he downloaded a lot of porn but whenever he came across child pornography he would delete it. The officer started to examine the laptop. He came across some encrypted files which Boucher helped him open by providing the password. Those encrypted files revealed, according to the officer “lots of revolting pornography involving children”.
Boucher was arrested and the laptop was seized as evidence. When the government tried to re-open the encrypted files, they were unable to do so. Boucher was ordered by a grand jury to provide the password but magistrate judge, Jerome J. Niedermeier of Federal District Court in Burlington, Vt., quashed that subpoena saying that requiring Mr. Boucher to provide it would violate his Fifth Amendment right against self-incrimination. The government appealed.
The government can make you provide samples of your blood, handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you, Judge Niedermeier said.
But Orin S. Kerr, a law professor at the George Washington University, said Judge Niedermeier had probably gotten it wrong.
“In a normal case,” Professor Kerr said in an interview, “there would be a privilege.” But given what Mr. Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.
Until these and other cases have been clearly ruled on, there will be some ambiguity as to if these searches are legal or not. Is a computer “an extension of our memories” or just electronic “containers”? Whether or not there is anything illegal on your computer is not the question. The real question is – Does the government, in this situation, have the right to invade your privacy at will? or Is there no expectation of privacy when dealing with customs officials?