Monday, August 31, 2009

Laptop Searches

Laptop Searches -- The Disastrous End to the Arnold Case and the Disappointing New Start by the Obama Administration

The Arnold case

In April, 2008, I commented on the Ninth Circuit's decision in United States v. Arnold holding, in effect, that laptops may be searched at the U.S. border even though the customs agent has no reasonable suspicion that the traveler in question has illegal data stored on the device. See, this link. (In this context, "laptop" includes iPhones, Blackberries, iPods, conventional mobile phones, memory sticks, external hard drives, CD's, digital cameras, and all other digital devices capable of storing information.)

Arnold thereupon petitioned the U. S. Supreme Court for a writ of certiorari, that is for review of the Ninth Circuit's decision, there being no appeal as of right to the Supreme Court in such a case.

On February 23 of this year Arnold's legal counsel was notified by the Supreme Court that Arnold's petition for a writ of certiorari had been denied. Two days later Michael Arnold committed suicide. See the Declaration of Marilyn E. Bednarski in support of her motion to de-publish the Ninth Circuit decision following Mr. Arnold's death (the motion was denied).

The case and Mr. Arnold's life thereby came to an end, but the regrettable law created by the Ninth Circuit in Mr. Arnold's case lives on and is now the leading opinion in the law of border searches of laptops. As a result, at the U.S. border the Fourth Amendment prohibition of unreasonable searches and seizures, the former rule of reasonable suspicion, and all other rules regulating or restraining the suspicions, curiosities, prejudices and whimsies of customs agents are nullified and the Customs and Border Protection (CBP) service and its companion agency, the U.S. Immigration and Customs Enforcement (ICE) branch, may search whatever laptops they please, whenever they please and for whatever reasons they please, or for no reason at all. It is open season on your laptop at the U.S. border.

In this context it is well to remember what the CBP itself says on its website about how it decides who to search:
Please be aware, some of CBP's biggest seizures have come from inspections of "respectable looking" people, such as grandmothers, corporate executives, college professors, etc. Everyone is subject to a CBP inspection when they arrive in the U.S.
If our grandmothers are at risk of having their laptops searched, then so are the rest of us.

The Feinberg Senate Committee Hearings

On June 25, 2008, the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Committee, chaired by Senator Russ Feingold of Wisconsin, held a hearing on "Laptop Searches and Other Violation of Privacy Faced by Americans Returning from Overseas Travel."

A balanced panel of witnesses said predictable things pro and con about the CBP's border laptop search policies and practices, few of the committee members bothered to attend the hearing and the Department of Homeland Security, under whose umbrella the CBP and the ICE reside, boycotted the hearing altogether and refused to send a witness. It was well that Senator Feingold held the hearing and it may have served to raise the level of public consciousness about the issue, but the hearing itself was a non-event.

The New York Times Editorial

Following the Feingold committee hearing, on July 10, 2008, the New York Times published an important editorial captioned "The Government and Your Laptop."

The Times noted the policy of the Department of Homeland Security to routinely search laptops and had this scathing comment: These out-of-control searches trample the privacy rights of Americans, and Congress should rein them in.

The Times correctly perceived that a search of a laptop is fundamentally different from a search of a suitcase: [b]ecause of the enormous amount of private information people keep on their laptops, the searches are more akin to rifling through someone’s home and reading every letter, financial record and personal journal. Those of us who use laptops every hour of every day in our professional and private lives know exactly what the Times editorial board meant by this observation.

The Times went on to note the Arnold decision, which it characterized as "disappointing," and recommended that Congress enact legislation imposing a mandatory standard requiring that the CBP have "... a reasonable suspicion about the specific person being searched" before a laptop search is allowed.

As will be seen in the next chapter of this comment, the Times' appeal for a "reasonable suspicion" has not been heard by the Obama Department of Homeland Security.

11 comments:

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