The Pornography of Laptop Searches

The government is again using its favorite boogeyman--child pornography--to push the likely limits of the U.S. Constitution's proscription against unreasonable search and seizures. The latest flash point is an April court decision that the Fourth Amendment does not require U.S. Customs agents to have reasonable suspicion before searching laptops and other digital devices.

You read that correctly. Yes, Customs can search your laptop on what amounts to nothing more than a whim. They can then copy the entire contents of your laptop, including proprietary business information, trade secrets and other privileged information. Or, perhaps, Customs will just grab your iPod and check it to make sure all your portable music is legal.

As the feds see it, your laptop is no different than a suitcase or a bag, which are routinely searched at international borders. As the Public Liaison Office at the U.S. Customs Headquarters in Washington recently put it: "[L]aptop computers may be subject to detention for violation of criminal law ... if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography or other criminal activity."

And just how does a Customs agent determine if a laptop may contain suspicious material? No one is really sure and no one at Customs is talking. The courts, however, are.

Which brings us to Michael Timothy Arnold, a 43-year-old California resident who is facing transporting child pornography charges after Customs officials seized his laptop at LAX as Arnold was returning from a trip to the Philippines. The only probable cause was that the Philippines are renowned for their child porno (so I'm told).

A Los Angeles district court booted the case on the grounds that the examination of laptop files was unreasonable, overly invasive and violated Arnold's Fourth Amendment rights. The court ruled that Customs failed to articulate any kind of reasonable reason for searching the laptop in the first place.

The Ninth Circuit Court of Appeals, though, reversed that decision, ruling that Customs needs no particular reason to search laptop contents. The Ninth said laptop searches are not fundamentally different than searches of luggage. The court gave no consideration at all of a laptop, as opposed to a suitcase, containing vast stores of information both personal and professional.

"Law firms, corporations and other entities that routinely deal with confidential information are handing their business travelers forensically clean laptops loaded with only what the traveler needs for that particular business trip," writes the Electronic Frontier Foundation. "Leaving unnecessary data, like five years of e-mail, behind may be the best thing. Of course, if trade secrets or client information are the reason for the trip, this plan will not help."

Probable cause is the only thing that helps here.