Recently, I was going through an airport with my shoes, coat, jacket, and belt off as well as with my carry-on bag, briefcase, and laptop all separated for easy inspection. I was heading through security at the Washington D.C., Ronald Reagan National Airport in Arlington, Virginia, or "National" as we locals call it. As I passed through the new magnetometer which gently puffed air all over my body - which to me seems to be a cross between a glaucoma test and Marilyn Monroe in Gentlemen Prefer Blondes - a TSA employee absent-mindedly asked if he could "inspect" my laptop computer. While the inspection was cursory, the situation immediately gave me pause: What was in my laptop anyway?
Similar thoughts must have gone through the head of Michael Timothy Arnold on July 17, 2005. He was having a bad day that was about to get much worse.
Arnold arrived at the International Arrivals Building at Los Angeles International Airport after a 20-hour flight from the Philippines. He might have looked like any other US traveler arriving from Manila after what he said was a three-week vacation visiting friends--tired, haggard, and casual. The Customs and Border Patrol agents were a bit suspicious, because they knew the Philippines is a haven for "sex tourism." They were also suspicious because Arnold could not remember the name of the company where he had once worked as a night auditor and appeared "fidgety." They demanded that Arnold power up his laptop, which the agents then examined for child pornography - which they ultimately found.
The Federal District Court rejected the government's argument that a search of a laptop is no different than rifling through luggage during arrivals inspection, and they suppressed the warrantless and essentially "suspicious-less" laptop search as unreasonable. The case was argued before the federal appellate court in October 2007 and a decision is imminent. The salient question: To what extent may customs, border, immigration, or other government officials search, mirror, copy, or analyze the contents of electronic gadgets with neither probable cause nor a warrant?
At the edge of law
It is clear that people traveling into and out of a country have a lower expectation of privacy at the border. Perhaps more accurately, a governmental search at the border is more likely to be considered "reasonable."
The agents get to do things they can't do if, for example, they simply stop you on the street. They can question you, they can rifle through your unmentionables, and even examine documents you are bringing with you. The agents can even disassemble your gas tank, looking for hidden compartments that you could be using to smuggle things. In the Arnold case, the government argued that its search authority at the border is "plenary" or unrestricted, except that to do an invasive body cavity search, it would have to have some kind of suspicion.
But searches of things? Well, they can do whatever they want it would seem.
The customs agents' job is to protect the nation from "anything harmful," to gather intelligence, prevent terrorism, and to enforce all of the laws, including child pornography and copyright laws. The computer is no different from any other "closed container" that the agent may search. Just as the agent needs no probable cause to search your underwear, they need no probable cause to rummage through your laptop. And besides, they are doing it to protect the country and enforce the laws and prevent terrorist attacks. You don't have any privacy rights at the border anyway, so what's the problem?
Same planet, different worlds
So, for example, is a computer the same as a briefcase or suitcase, under the law? I mean, if you don't want your stuff searched, don't bring it with you. You abandon your "expectation of privacy" at the border, right?
The government's position is as frightening as it is naíve. A computer is not the same thing as a briefcase. Nor, for that matter, is an iPod, a thumb drive, or a cell phone. It is both quantitatively and qualitatively different, and that makes all of the difference in this case. It seems that the government and the lower court are speaking past, and not at, each other. The government says, "We can do anything for any reason," and the court says, "No, you need reasonable suspicion to search a laptop."
Indeed, they are both wrong.