EFF, others fighting privacy-invading border laptop searches

6-13-2008 National:

The Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) are asking the Ninth Circuit Court of Appeals to review a decision that allows border patrols to search US citizens' laptops for no reason. The two groups filed an amicus brief (PDF) with the Court, asking it to rehear the case and, hopefully, reverse the decision. They argued that the decision is a violation of citizens' Fourth Amendment rights that protect them from unreasonable search and seizure.

The case goes back to 2005, when a US citizen named Michael Arnold (US -v- Arnold) returned to the US from the Philippines. A Customs and Border Patrol agent asked Arnold to fire up his laptop and browsed through two folders on the machine's desktop, labeled "Kodak Pictures" and "Kodak Memories." After finding a photo that "depicted two nude women," the search continued, turning up what the agent believed may have been child pornography. Arnold's computer was then seized and he was arrested.

In the resulting court case, Arnold argued that the search was unreasonable and a violation of his Fourth Amendment rights. Arnold claimed that a laptop was more like "home" and "the human mind" than a typical closed container and that searching it required a reason. A district court agreed that Arnold's argument that a laptop was different from normal closed containers like luggage, which are routinely examined by border agents without particular cause.

A three-judge panel from the Ninth Circuit Court ruled on an appeal of the case in April of this year, however, and overturned the district court's decision. The panel said that border agents are free to routinely search citizens' laptops and other electronic devices because they already have wide latitude to search suitcases, purses, wallets, and other documentation without reasonable suspicion. Even if they don't see anything of interest, they can still simply search and confiscate your laptop and other electronic gadgets like external hard drives, phones, and PDAs, simply because they feel like it, and all in the name of national security.

The EFF and ACTE now argue that the Court's decision essentially renders useless the Fourth Amendment and puts citizens' privacy and identities at risk, because border patrols can confiscate laptops and make full copies of their contents. As anyone traveling with a laptop knows, our machines can contain personal and professional communications, banking information, legal information, tax documents, photos, (in the case of journalists) communications with confidential sources, and more—all of which can simply be copied over to a government computer and used however the government pleases. "[T]hese random searches give businesses and individuals a reason not to travel across US borders to conduct business, and they force businesses to expend significant resources protecting confidential information," reads the brief.

The two groups argue that, because of the volume of information stored on a laptop, the level of privacy invasion at a border search is "enormous," not to mention that computers often contain information that users may not know about or have tried to erase. Basically, the EFF and ACTE say that the information contained within doesn't quite compare to rifling through the selection of N'Sync bobblehead dolls that I voluntarily packed away in my suitcase, or the pocket change rolling around at the bottom of my bag. Embarrassing, perhaps, but not a clear and open window directly into every aspect of my life—even the parts I've tried to erase.

"[T]he panel decision failed to appreciate the constitutional concerns raised when border agents randomly search and seize laptop computers from international travelers," conclude the EFF and ACTE. They ask that the Court require only reasonable suspicion of a crime before border agents may search the contents of someone's computer, and expect a decision from the Court on whether to rehear the case within the next few months. ..News Source.. by Jacqui Cheng