9th Circuit: Feds can search laptops without suspicion

9th Circuit: Feds can search laptops without suspicion

Summary: Is your laptop your digital "home"? Um, no, the ("liberal" - that always makes me laugh) Ninth Circuit ruled Monday in US v Arnold.

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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.

Topics: Laptops, Hardware, Mobility

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130 comments
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  • What about external drives and encryption?

    Do they have the right to search external drives?
    What if data on the laptop or drive is encrypted?
    paul2011
    • Ya i would also like an answer to this stuff.

      People encrypt documents all the time.. you could tell them a the key is in the mail, or they are trade secrets.
      Been_Done_Before
      • Hmm

        As far as I can tell, they can open the files. If they can't read them (cuz they're encrypted) can they make you de-encrypt them? Say you dont know how and force them to go to court to compel de-encryption. It does not appear to have come up as a court case.
        rkoman9
        • They can't make you decrypt them...

          ...but they don't have to give your laptop back either! They'll just ship it off to DHS "for further study", and if they are satisfied with what they see - 4 months from now - they MIGHT ship it back to your house.

          Better to make the files invisible, put them on a second account that you can claim "belongs to the company", and tell them you have a "loaner laptop" from your firm. And clone your hard drive before you travel. You may have to restore from the backup.
          vikingnyc
    • Certainly

      I didn't mention these details but here is what they searched:

      * Laptop
      * external hard drive
      * Memory stick
      * 6 CDs.

      It's all fair game.
      rkoman9
    • A Good Question

      I think I can put at least three groupings of laptops.

      Personal - It just belongs to a person, as in the mentioned case.

      Corporate - The laptops belong to a company which may have corporate proprietary information on the computer.

      Government - The laptop belongs to a government agency that may have local, national or international "secrets" on the device.

      I work at a major county in California and ALL of our laptops have full disk encryption to protect the public data that may be on the laptop. Disclosure of certain data would violate many government privacy and secrecy laws.

      Which government agency would win out in this battle? For example, DHS/TSA vs. IRS? vs. government contractor? vs. Military laptop?

      And the question is good. What if the entire laptop is encrypted? Then what? Can they require you to login and decrypt it? What if you work for the CIA? Can the Home Security people make you open up your laptop? I think the court ruling can be challenged on this basis.
      hforman9
  • RE: 9th Circuit: Feds can search laptops without suspicion

    Illegal and it's time we stop allowing the freedoms from illegal search and seizure by airport searches from happening.

    I can't believe how many people just go along with something so against American values. Regardless what they found, the search was illegal and unwarranted.

    Great the caught someone with child porn, but the method employed was illegal. And it's because behavior like this I use encrypted partitions on my Linux laptops. 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. ]:)
    Linux User 147560
    • Extension of home or purse?

      If this were a stop within the US you would be right, no question. But because it happens when you are attempting to enter the question, the government has a right to know what you're bringing in. And short of searching your rectum, or some deeply offensive property invasion, the law seems to be you get searched.

      The court did not buy the idea that the laptop is an extension of your home or your body. But that is still debatable - the district court held the opposite. But if you march this up to the Roberts Supreme Court, how do you suppose the final judgement will come down?
      rkoman9
      • Maybe Justice Scalia will take Kyllo...

        ... further beyond the front door. He has already protected heat beween the wall and a measuring device, after all. And, a laptop is concrete enough to overcome Justice Stephens's problem with heat as an intangible...
        Anton Philidor
        • Home vs. mobility

          Kyllo was about running a heat-detection device at a home. Scalia found that to violate the expectation of privacy in the home. Laptops are mobile. In that regard they're more like cars than like homes. I find the whole argument that a laptop is your mind and looking at files the equivalent of doing a brain scan of your (in some sci-fi sense) to be absurd.

          The idea that it's your home is ridiculous, too. You're taking it on the road. It's like saying you could load your car up with photos and private documents and attempt to drive across the border (I keep emphasizing these are border rules, only!) and say that customs can't look inside your car. If it's a container, they can look inside. Isn't the most logical metaphor for a laptop not a home or a head but a thing (container) that holds documents?
          rkoman9
          • Re: Home vs. mobility

            Inspection of personal items SHOULD be enforced for people from foreign countries - or for U.S. citizens who may be classified as "High Risk." The problem is who makes the determination of that classification and why. Random searches of people without probable cause has its parallels in 20th century history. (eg: "Show me your papers").

            While I agree that searching a laptop is not the equivalent of a "brain scan," it is nontheless a search of a person's personal documents.

            Are you actually saying thay you should not file anything personal in your personal property?

            What the person in question did (If found guilty), was abhorrent to society, but how he was caught was equally as abhorrent.

            Think about what you are advocating.
            DDXDavid
          • At the border

            You don't need to worry about who is high-risk or not: if you are coming into the country, they can routinely search just about anything except your body cavity. I agree that it is an interesting question about what happens in a search inside the US, but this is border law.
            rkoman9
          • Secrets

            In this case, there were "personal" secrets. What would have been the case if there were government and/or military secrets on the laptop? Is the TSA or DHS entitled to see everything?
            hforman9
          • Secrets

            I presume someone with clearance flashes a SECRET badge and gets waved through.
            rkoman9
      • Extension of Home or Purse

        As an attorney who lives next to O'Hare airport, I can tell you not to assume any parts of your body, especially your rectum and colon, are off limits. I've had clients who "fit the profile" stripped and sat on buckets until contraband (usually not a laptop)emerges. They can keep people this way for days and, if they are wrong then good luck trying to get even an apology.
        Dawn
        dariced
    • It would seem the 9th Circuit ....

      ... disagrees with you. I wonder who is more up on the law, you or them?
      ShadeTree
      • ...

        Who gives a rats @ss. The law of the land is derived from the founding documents. Or have you lost sight of that as so many others in this nation? ]:)
        Linux User 147560
        • Read the Constitution again...

          The law of the land is whatever the courts say is the law of
          the land. The Constitution was designed to be flexible, and
          the Founding Fathers who wrote the Constitution realized
          no document could be the answer to every question.

          If the 9th Circuit says searching laptops is fine, that's the
          law in states within the 9th Circuit (California, Oregon,
          Washington and a few other states). Until the Supremes (or
          the 9th Circuit itself) overrules this decision, it's the law,
          plain and simple.

          Like it or not, this is the country we live in. Since all
          Federal judges have lifetime appointments, we need to pay
          attention to the politicians who appoint and approve
          Federal judges.

          We all have a chance to make a statement this coming
          November...
          KaplanMike
          • ...

            Actually no we don't, the next president has already been selected. Our votes are a feel good illusion. Or have you missed all the indicators that the corporations now control majority power in the US government? No conspiracy theory, just a lot of independent research of my own. You don't have to believe me, but you can do some research of your own and draw your own conclusions.

            I just read several parts of the Constitution last night, as part of a rebuttal in a debate. But the sections I was reading pertained to guns and rights to move about secure in person.

            Either way we are screwed, we are screwed because people that are paying attention are so minor that no one listens to them. Group think has affected the majority and no one wants to buck the systems for fear of being persecuted or singled out. But if more people start to ask questions that are not rote and standard, and start to look behind the scenes, then maybe we can turn the course of events and stop the lunacy that has infected our government and out nation... or just go along with the other lemmings. Me, I walk my own path and it's not with the rest of the sheep! ]:)
            Linux User 147560
          • I laugh myself teary-eyed...

            ...when I realize how much America is becoming like Stalinist
            Russia. Used to be the 'enemy' was 'over there'. In those days
            of the cold war, we used to be indoctrinated to 'hate the
            "Russians" because they want to control the world'. Little by
            little, were getting to know how the man-in-the-street Russian
            felt about that and we're pretty much just as powerless to do
            anything about it. Or maybe you didn't know that the rest of
            the world is beginning to view the USA as the new Big-
            Brother(-Is-Watching-You).
            Well, we all know now that Rusiia went basically bankrupt
            behaving like that, but it took a half of a century. I suppose we
            can hope for some improvement 50 years from now afer
            America goes bust and China bails us out. What goes around,
            comes around.
            Riphly_z