Whether it’s a laptop computer, a Blackberry or a cellphone, confusion by Circuit Courts combined with the blurring of rationales is on the verge of ending whatever privacy you thought you had in your personal information, according to Adam Liptak.

I  recently posted about the case of Sebastien Boucher, who learned the hard way about coming across the Canadian border, ah?  As that case resolved around a password-protected computer folder, it was somewhat unusual in terms of the basic issue of privacy at stake. 

Liptak writes about another case, Michael T. Arnold, flying into Los Angeles from the Philippines with his trusty laptop in hand.  A customs officer decided to take a look-see at the files on his computer.  Arnold wasn’t a suspected terrorist.  The laptop didn’t set off alarms that it emitted the odor of plastic explosive.  The customs officer was just checking, because he could.

The LA district court judge, Dean Pregerson, had it right.

“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”

The Circuit, Liptak predicts, views it differently.

The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.

This simplistic assessment is yet another example of remembering the rubric while forgetting the rationale, a favorite endeavor of courts when trying to avoid any novel thought and hide behind the wall of precedent. 

While border searches have long been a free for all, it developed that way for a reason.  The rubric was that there was no expectation of privacy at the border, thus letting everyone crossing a border know that they were subject to search.  But this was the end product of the analysis, not the beginning.  The purposes behind this free-search zone was both safety and revenue.  Whether it was weapons, or bug-infested coconuts or untaxed Rolexes, there were legitimate interests at stake giving rise to the limited expectation of privacy.

None of these rationales for the wholesale elimination of privacy applies to an individual’s private information stores on his hard drive.  As Judge Pregerson noted,

Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and — the clincher, of course — information about reporters’ “confidential sources and story leads.”

What legitimate border-related interest does the government have in knowing about financial records?  Clearly, none.  It’s just old rules applied to unforeseen circumstances resulting in unintended consequences.  By elevating the rule above the rationale (which only seems to happen when it favors the government’s authority to intrude), the court could create quite a dilemma.

If there is no privacy as to the content of a computer hard drive, will the next logical step be for the government to download all hard drives at a person passes through customs for inspection at a more convenient time, thus letting the government maintain a complete record of the contents of every laptop that crosses a border?  If it’s encrypted (and you’re not as stupid as Boucher by giving it away for free), can customs either command that you enter the password or refuse you entrance to the United States?  Or can they simply impound your computer upon refusal?

Thinking further down the road, we are not at the out limit of technological advancement yet.  I hesitate to think what is coming down the pike, but I suspect that the amount of private information now available on a laptop barely scratches the surface of what will be available in the future.

But the rules are being written now, and it will only be baby steps to apply the same rubric to new technology as it comes online.  Just as the Circuit appeared enamored of the simple container analogy, everything is a container if one wants to call it that, including that bony part of our anatomy surrounding the brain. 

In the old days, traveling abroad was a very big deal.  Today, it’s barely different than going to a neighbor’s house.  Would federal judges feel as warmly expansive to the government if their private thoughts on cases, government officials and people they don’t know in varying states of undress become the favored reading material of border agents? 

I can think of a bunch of good reasons why border agents won’t be able, or inclined, to hassle a federal judge coming back from his Bermuda junket with laptop on hand, leaving them to have only the limited appreciation of intrusiveness that can be seen from a big bench.  I have no expectation to enjoy any such courtesy.  I hope there’s no file on my computer that suggests a Kodak moment.