US court waves through border laptop searches

Your laptop ain't your home and it ain't your mind, either

Contrary to what some of you may believe, one cannot live in a laptop, according to the Court of Appeals for the Ninth Circuit in the US.

In a recent ruling, a three-judge panel of that court determined that border agents could examine the contents of a laptop without reasonable suspicion of wrongdoing. As part of that decision, the court rejected the defendant's contention that his laptop was analogous to his home or his mind because of the amount of storage and type of personal content that could be held there.

The case began when Michael Arnold touched down at LAX after a trip to the Philippines. While going through customs, a US Customs and Border Patrol Officer selected him for secondary questioning.

Inside his luggage, Arnold had a laptop computer, a separate hard drive, a USB flash drive and six CDs. The officer asked Arnold to turn the computer on, then discovered pictures of naked women in folders on Arnold's desktop.

Special agents of the Department of Homeland Security seized the laptop and storage after finding images they believed constituted child pornography, but released Arnold. Two weeks later, they returned with a warrant for his arrest and charged him with multiple counts relating to child pornography.

Border and customs agents in the US have broad authority to conduct searches when people try to enter the country. They operate outside the Fourth Amendment's warrant requirement, a feature of executive power known as the "border search exception", although they are still subject to the Amendment's reasonableness requirement.

Reasonable suspicion

Courts have long held that random searches of closed containers and their contents at the border are reasonable. The Supreme Court has determined, however, that interests of human dignity and privacy require a reasonable suspicion before intrusive searches of a traveler's person.

Arnold argued at trial that searching his laptop was the same thing as searching his person, since laptops contain personal information such as emails, web surfing histories and personal documents.

The trial court agreed, stating that electronic storage functions as an extension of human memory; thus a search of stored personal data constituted an intrusion into the mind. The court suppressed the evidence seized from Arnold's laptop, and the government appealed.

(Mark Rasch of SecurityFocus has an excellent analysis of the parties' positions at trial, and the issues underlying border searches of laptops generally.)

The Ninth Circuit disagreed. The panel rejected the trial court's figurative view of digital storage and adopted a literal view: laptops and storage devices are personal property, pure and simple. As such, they are subject to searches at the border with no reasonable suspicion.

In addition, the Ninth Circuit rejected Arnold's argument that the search proceeded in a particularly offensive manner – an exception to the government's border search powers.

Arnold equated his laptop with his home, since it enables the storage of large amounts of personal documents, the physical equivalent of which could only be stored at a residence. Since homes receive great protection under the Fourth Amendment, Arnold contended that the search of his laptop was particularly offensive.

But the court wasn't buying it, and based its rejection on "the simple fact that one cannot live in a laptop" – a phrase destined to find a place in the annals of cyberlaw lore.