April 23rd, 2008
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.
