The TSA: "Just Step Over Here Quietly While We Search Your Laptop!"

TSA:

Just Step Over Here Quietly While We Search

Your Laptop!

9th Circuit: Feds can search laptops without suspicion

Is your laptop your digital “home”? Um, no, the (”liberal” - that always makes me laugh) Ninth Circuit ruled Monday in US v Arnold. At least not at the border or at the international terminal of a US airport.

Michael Arnold arrived at LAX from the Philippines, where he was pulled aside by customs agents for a random laptop search. They found what they believed to be child pornography. Two weeks later they obtained a warrant and a grand jury charged him with breaking federal kiddie porn laws.

The issues in the case were two: Are customs officials at US airports required to have reasonable suspicion (not probable cause, btw) to search a laptop? If so, did they have it in this case?

The holding: International travelers arriving from overseas are subject to border rules. And those rules are very, very favorable to the government. There is no reasonable suspicion needed for searches of “closed containers,” such as luggage and briefcases (US v Tsai, 282 F.3d 690 [9th Cir. 2002]); purses, wallets or pockets (Henderson v US, 390 F.2d 805[9th Cir. 1979]); and pictures, films and videos (US v 37 Photographs, 402 US 363; 12,200-Ft. Reels of Super 8mm Film, 413 US 123).

Under that standard, it sure seems like laptops are containers. There are some limits, of course. The feds do need reasonable suspicion to search one’s “alimentary canal” for reasons of “human dignity and privacy” (US v Montoyta de Hernandez, 473 US 531). In addition, there may be some property searches that are so destructive that they require particularized suspicion.

So, is a laptop part of your body? Arnold argued that it is like the “human mind” because it stores “ideas, email, internet chats and web-surfing habits.” Or that it’s like a home because you can store everything personal that you would store in your home — presumably snapshots, legal documents, love letters, etc.

But not even a mobile home qualifies as a home under Fourth Amendment jurisprudence (California v Carney, 471 US 386) because mobile homes are mobile and expectation of privacy in a vehicle is pretty darn low. And searching a laptop is not a “particularly offensive” handling of property, considering the Supreme Court decision in US v Flores-Montana, 541 US 149, which held that complete disassembly and reassembly of a car’s gas tank didn’t require reasonable suspicion.

Bottom line: If you’re arriving in the US from a foreign location, customs officials have every right to search your laptop — and they don’t need any reason to search.

All the more reason not to take a laptop with you — just use Google Docs or some other online service and rent a computer when you get there. In any case, lay off the kiddie porn.

This might be interesting. I received this statement from the Association of Corporate Travel Executives regarding the Ninth Circuit decision that border cops may search laptops without even reasonable suspicion.

“ACTE filed an Amicus brief contending that a traveler’s laptop was essentially intellectual property and not the same as luggage nor freight,” Susan Gurley, ACTE Global Executive Director, said. “The court has disagreed and this decision will have significant impact on business travelers who have no idea their data is subject to search and seizure.”

The association also argued there were no published guidelines as to what might trigger a secondary inspection, or the seizure of data or possibly the entire computer. According to Gurley, the expectation of privacy at the border is considerably less than one can expect in their home or office.

“In a time of heightened international security, it will take a brave Congress to rule that parties may not be subject to suspicionless searches,” said Gurley. “The 9th Circuit Court of Appeals missed a golden opportunity to preserve the rights of Americans.” Gurley contends this issue will surface again when a more compelling case winds its way to the Supreme Court, or additional parties seek a legislative remedy to the problem.

A 2008 ACTE survey indicated that 81 percent of responding travel managers were unaware that laptops and other electronic devices that were seized could be held indefinitely. Sixty-five percent of respondents stated that their companies have now instituted a policy restricting the amount of sensitive or proprietary data that could be carried on a laptop. That number is expected to grow in the wake of this ruling.

ACTE’s advice to business travelers states:

1. That you should not carry any confidential, personal information that you do not want examined by third parties on your computer – or other electronic devices. This includes financial data, photographs, and email stored on computers, wireless phones, Blackberries, or iPod-type devices.

2. That you should limit the amount of proprietary business information you carry on your computer, and that it be transmitted before crossing the border so you have access to it in the event your unit is seized.

3. If your laptop also serves as your major home computer, get another one for travel purposes.

4. The Association of Corporate Travel Executives is not advising travelers to hide data from U.S. border authorities, but to take steps to minimize the impact of its loss, or the inability to access it, in the event it is seized.

And it's because behavior like this I use encrypted partitions on my Linux laptops or I carry a number of encrypted Flash drives.

Because without a proper writ or warrant, they are not searching my private possession that is an extension of my home.

I mean if the US government can use that premise than so can I since in theory I am a portion of the US government.

Anyone remember that little tid-bit... a government for the people, of the people, by the people? Seems we as a nation have lost sight of that simple fact.

“When Fascism comes to America it will be wrapped in the flag carrying a cross.”