A lot of folks consider their cell phone, PDA, even their laptop, as an extension of their personal being, the same as their home or their diary. That makes border crossing searches — or even confiscation — of such items troubling at least, traumatic at worst (not to mention, on occasion, incriminating).
Now a California court has ruled that border agents can’t just willy-nilly search your laptop (or other electronic gear) without a reasonable suspicion that there’s something incriminating there.
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.”
Border agents have, traditionally, had the right to bypass that whole Fourth Amendment thang as part of “border security.” But are there reasonable limits on that? Can other rights be similar trammeled? It’s one thing to search luggage — another thing to force folks through body cavity searches? Where do personal electronic repositories fall in that? If the border agents made a backup of every laptop and cell phone that crossed the border, without any court order, would that be okay? If not, then why allow them to search a single laptop without reasonable cause.
Interesting stuff.