Laptop searches are on the rise for travelers, due to recent court findings upholding the United States government's stance that it is free to inspect every laptop that enters the country.
In a case brought two years ago by Michael T. Arnold, whose laptop was searched by a customs officer at Los Angeles International Airport after a flight from the Philippines, child pornography reportedly was found in folders named "Kodak pictures" and "Kodak memories."
One federal appeals court agreed with the government's decision, and a second seems ready to follow suit. Judge Dean D. Pregerson of the Federal District Court in Los Angeles suppressed the evidence against Arnold.
"Electronic storage devices function as an extension of our own memory," Pregerson wrote, stating that government should not be allowed to inspect them without probable cause. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound."
Pregerson said computer hard drives can include diaries, letters, medical information, financial records, trade secrets, attorney-client materials and information about reporters' "confidential sources and story leads."
However, Pregerson's decision seems to be headed for reversal. The three judges who heard the arguments in the October 2007 appeal of his decision seemed to have been convinced that a computer is just a container and deserves no special protection from searches at borders. The same information in hard-copy form, their questions suggested, would be subject to search.
The U.S. Court of Appeals for the 4th Circuit in Richmond, Va., took the same position in a 2005 decision. It upheld the conviction of John W. Ickes Jr., who crossed the Canadian border with a computer containing child pornography. A customs agent's suspicions were raised, the court's decision said, "after discovering a video camera containing a tape of a tennis match which focused excessively on a young ball boy."
According to Jennifer M. Chacón, a law professor at the University of California, Davis, searching a computer "is fairly intrusive." Like body searches, she said, such "an invasive search should require reasonable suspicion."
A supporting brief filed in Arnold's case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there must be limits on the government's power to acquire information.
"Under the government's reasoning, border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign," the brief stated.
In the case of Sebastien Boucher, a Canadian who lives in New Hampshire and drove across the border about a year ago, a customs agent reportedly asked whether there was any child pornography on his laptop, which was on the back seat. Boucher reportedly said he was unsure, adding that he downloaded a lot of pornography but deleted child pornography when he found it.
Some of the files on Boucher's computer were encrypted using a program called Pretty Good Privacy, and Boucher helped the agent look at them, apparently by entering an encryption code. The agent said he saw lots of pornography involving children.
The government seized the laptop but was unable to open the encrypted files again. A grand jury instructed Boucher to provide the password.
But a federal magistrate judge quashed that subpoena in November 2007, saying that requiring Boucher to provide the password would violate his Fifth Amendment right against self-incrimination. Last week, the government appealed.
The magistrate judge, Jerome J. Niedermeier of the Federal District Court in Burlington, Vt., used an analogy from Supreme Court precedent. He said it is one thing to require a defendant to surrender a key to a safe and another to make him reveal its combination.
But Orin S. Kerr, a law professor at George Washington University, disagrees with Niedermeier.
"In a normal case, there would be a privilege," Kerr said in an interview, but given that Boucher had provided the password at the border, making him do it again probably would not violate the Fifth Amendment.
