Saturday, May 03, 2008

Borders and Laptops: U.S. v. Arnold

First, I apologize for having been MIA for so long. It was due to a combination of things, classes, outside commitments, travel, etc. . . . basically not having the ability to turn down interesting things.

Second, I’m doing this post because I got an email from someone who’s read what I’ve written about laptop searches and who wondered what my take is on the 9th Circuit Court of Appeals’ recent decision in U.S. v. Arnold. You can find the opinion here, if you’re interested. Just click on this link, then click on the box on the left-hand side that says “opinions”, go to the opinions decided in April and look for Arnold, which was decided April 21, 2008. You can also find it by docket number: 06-50581.

As I wrote earlier, Mr. Arnold’s laptop was searched at LAX when he was returning from the Philippines. The Customs and Border Patrol officers didn’t just turn the laptop on to see if it was a functional laptop. They did that, but they also searched through files on the laptop and found child pornography. Mr. Arnold was then charged with possession and transportation of child pornography, which are very serious charges. He moved to suppress the images found on this laptop, arguing that the search of the files violated the Fourth Amendment.

Mr. Arnold argued that the contents of a laptop were not encompassed by the border search exception to the 4th Amendment’s requirement that police obtain a search warrant to search private property. The border search is an exception to the 4th Amendment’s requirement that officers get a warrant; it’s a very old exception, one that goes back even beyond the history of the United States. It’s based on the very logical premise that a sovereign nation has the right to find out what’s coming into its territory and what’s going out. It follows from that premise that the sovereign’s border agents can check out luggage and parcels being transported across the border . . . routinely, without probable cause or a warrant or any of the other niceties required by the 4th Amendment.

Mr. Arnold argued that searching a laptop’s contents should require a higher standard, what is called “reasonable suspicion.” Reasonable suspicion is less than probable cause, but it’s still what is called “individualized suspicion.” That is, it means an officer has to be able to justify his/her searching your property based on something you, as an individual, did. If a laptop search comes within the scope of the border exception, then when a Customs officer is asked why she searched a particular laptop, she says, in effect, “because it was crossing the border and I search things crossing the border.”

If an officer must have reasonable suspicion to search a laptop, then when she is asked why she searched a particular laptop, she has to justify the search based on specific things about the person carrying it (behavior, fake passport, etc.) and/or about the laptop itself (that’s harder for me to articulate, but there could be something about a laptop that might justify checking out the files on it). My point is that individualized suspicion means officers cannot routinely search any and every laptop that happens to be crossing the border which is, IMHO, a very important point.

Mr. Arnold argued that “`laptop computers are fundamentally different from traditional closed containers,’ and analogized them to . . . the `human mind.’ . . . He argues that a laptop is like the `human mind’ because of its ability to record ideas, e-mail, internet chats and web-surfing habits. U.S. v. Arnold, supra (9th Circuit, April 21, 1008). He also analogized laptops to “homes,” on the theory that they contain essentially as much information about a person as does their home.

The district court agreed with Mr. Arnold and granted the motion to suppress, but the Ninth Circuit reversed. It essentially held that, under the U.S. Supreme Court’s interpretation of the border search exception, a container is a container is merely a container . . . so reasonable suspicion is not required. The Ninth Circuit noted, correctly, that about the only restrictions the Supreme Court has imposed on border searches are on those that are physically intrusive, e.g., on strip searches or other intense explorations of someone’s body.

What do I think of the Ninth Circuit’s opinion? I think it’s the predictable result, given two factors: The first factor is, as the Ninth Circuit correctly noted, the state of the law governing the border search exception. The other is the sad truth that U.S. courts have not grappled with how evolved technologies can alter the nature of a “container.” Yes, of course, a laptop is literally and functionally a “container” – it “contains” data. But it is, I respectfully submit, a container of an entirely different order from the suitcase I carry with me when I leave and enter the U.S.

I believe, as I may have said before, that cases like these are the twenty-first century’s version of a mistake the U.S. Supreme Court made 80 years ago. In Olmstead v. U.S., 277 U.S. 438 (1928), a majority of the Supreme Court held that it was not a “search” under the 4th Amendment for law enforcement officers to put a tap on phone lines outside a house and use it to listen to the contents of calls made from the house. Olmstead, a notoriously successful bootlegger, argued that it was a search because the conversations they heard originated from inside his home, which is the most “private” of “private” places under the 4th Amendment. The majority of the Court applied a “law as it has always been” theory and held that it was not a search because there was no physical entry, no trespass, into Olmstead’s home.

That was the Supreme Court’s first encounter with evolving technologies, and the Court got it wrong. In a prescient dissent, Justice Brandeis pointed out that
‘in the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.’ The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. ‘That places the liberty of every man in the hands of every petty officer’ was said by James Otis of much lesser intrusions than these.

Justice Brandeis essentially argued that simply because law enforcement officers have the ability to do something does not mean they should necessarily be allowed to do it under the 4th amendment.

While we have not yet seen the “advances in the psychic sciences” Justice Brandeis postulated, consider where this might go: What if, in 10 or 15 years, instead of carrying a laptop I have a surgically implanted device in my head that lets me store data of all types, communicate instantly with anyone around the globe and carry out a series of other functions? Can law enforcement routinely access and copy the contents of my surgically implanted device whenever I enter or leave the U.S., on the basis of the border search exception?

That scenario would seem to involve a collision between the cases I noted above – the ones in which the Supreme Court has held that the 4th Amendment does impose some higher requirements for border searches that are physically intrusive – and cases like the 9th Circuit’s decision in Arnold.

I suppose the government could argue, though, that since accessing the information in my implant is conducted remotely and electronically, with none of the distasteful groping and probing involved in body searches, that it would come under the Arnold rationale, rather than the body search rationale.

Final word: Justice Brandeis was right. In construing the 4th Amendment we have to stop thinking literally and think, instead, about what it is we are trying to protect.

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