If Your Hard Drive Could Testify…
Adam Liptak’s Sidebar column in the New York Times today reports on a case involving searches at the border:
A couple of years ago, Michael T. Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called “Kodak pictures” and “Kodak memories,” the officer found child pornography.
The search was not unusual: the government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer’s hard drive, the government says, is no different than looking through a suitcase.
One federal appeals court has agreed, and a second seems ready to follow suit.
There is one lonely voice on the other side. In 2006, Judge Dean D. Pregerson of Federal District Court in Los Angeles suppressed the evidence against Mr. 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 — the clincher, of course — information about reporters’ “confidential sources and story leads.”
But Judge Pregerson’s decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.
This is certainly an interesting case. Those who know me are well aware that my contempt for child molesters and consumers of child pornography is boundless. Indeed, while I strongly oppose the use of torture in interrogations (not only because I believe it is morally wrong but also because it is ineffective), I would make an exception to allow child molesters and abusers to be tortured over a long period of time as a form of retributive justice. However, I am also a strong supporter of the constitutional right of individuals in the United States to be free from unreasonable searches and seizures by the government. Thus, I don’t believe that government agents at the border or anywhere else should have a nearly unlimited power to search through persons and their belongings without reasonable suspicion, probable cause or a search warrant. I do think the border is a special case and different rules should apply but there should still be limits on the power to search. Unless there is reasonable suspicion or probable cause, the scope of searches at the border should be limited to the primary mission of U.S. Customs and Border Protection: preventing terrorists and terrorist weapons from entering the United States, stemming the flow of illegal drugs and other contraband and protecting the United States agricultural and economic interests from harmful pests and diseases. They should not have the unchecked power to look at every file on a traveler’s laptop or read every document in a traveler’s possession. Nevertheless, under current case law they do have that power. The “Border search exception” article on Wikipedia has some good information on that subject. I listened to the audio of the oral argument before the Ninth Circuit in United States v. Arnold and, while I haven’t read all the briefs in the case, I have to say that the government’s position and argument struck me as being very strong and compelling while the appellee’s argument was weak and not very persuasive.
More about this later…
