For the last week or so, I’ve been bombarded with complaints from friends and fellow travelers about how they believe that now they will be a target of the (say it with me now in a menacing voice) the evil Bush administration and have their gadgets seized while they return from a trip abroad.
These concerned travelers seem to believe that while in line at passport control, they will be tackled and have their family photos seized for months. I’ve heard multiple people decry that our “civil liberties” are being infringed upon. They are using emotional, not logical rhetoric, to think this one out.
So here comes a dissenting and unpopular view: I don’t care about this recent change in policy because it’s just a clarification of existing the Border search exemption. So take a deep breath and read on.
The Fourth Amendment prevents unreasonable search and seizure, but still pursuant to probable cause. There are, of course, a few exemptions to this (exigent circumstances, for instance). The Fourth Amendment does not specifically mention border searches, but over the years these searches have been permitted under various federal statutes and affirmed under appellate decisions. However, the Fourth Amendment does mention the word “unreasonable,” and that’s been the subject of legal dispute for many years.
Customs and Border Patrol operates under “routine” and “non-routine” searches — they don’t need cause to search my luggage. They do, however, need cause or “reasonable suspicion,” as defined in US vs de Hernandez (473 US 541 (1985)), which says that they need a “particularized and objective basis for suspecting the particular person.” So CBP needs reason to do physical searches on your person and won’t just start “coppin’ a feel” at random.
Since CBP can search closed containers at will, it’s logical that in the 20 years after the de Hernandez decision that it would extend to electronic materials/devices. The US Government’s argument is that electronic devices are functional equivalents of physical containers (my address book on my Blackberry, for instance, is the functional equivalent of a paper address book).
Customs has the legal permission to search all mail and packages entering the US (US v Ramsey, 431 US 606 (1977)), so you could make the argument that email is an extension of physical mail. As Steve Surjaputra already mentioned, this case was decided by The 9th Circuit US Court of Appeals, which has a reputation for having a “liberal bias.” The court reversed the lower District Court’s decision in US vs Arnold (2008.)
Michael Arnold, the defendant in the case, during the course of a CBP search at LAX, was found to have child pornography on his laptop in folders on his desktop. His attorneys argued that the lower court was correct in finding that CBP didn’t meet the burden of “reasonable suspicion” as mentioned above, so they should suppress what they found on his desktop. Arnold’s attorneys also argued that the First Amendment applied, since you need a higher level of suspicion for searching “expressive material”. The District Court agreed with Arnold, but upon appeal, the 9th Circuit overturned their ruling. The First Amendment argument didn’t work because due to existing case law in US vs Ickes (393 F. 3d 501 (4th Circuit 2005)), The 9th Circuit followed precedence, and rejected Arnold’s argument on both counts.
The Arnold decision led to where we are today: DHS does have the legal right to seize electronic devices at border entry points. But just because they have the right doesn’t mean we should start panicking. As a somewhat frequent border crosser (about once a month), I’m not worried. I’m not bringing any contraband back into the US or breaking the law, so even if ICE does go through my laptop, they’ll be terribly bored in what they’ll find.
But this doesn’t mean that I have my entire life on my laptop for someone to snoop around. As I mentioned in an earlier column, you should be practicing safe computing. Security expert Bruce Schneier has a few good ideas, like keeping minimal information on your laptop. Think of this as risk mitigation: Your personal data is often more important than the physical asset, so reduce your personal data on your laptop. This way, if your device does get stolen (more likely) or confiscated (less likely), you’re more upset about the device being lost.
Let’s all be calm, take a deep breath, and understand what this ruling really means and the context for which it applies. It’s easy to get caught up in emotional debate and repeat sound bites and ignore the law.
(Note: I am not a lawyer, but I do enjoy watching Mariska Hargitay on Law and Order: SVU)
