From Orin Kerr at Volokh, the 9th Circuit has ruled in United States v. Arnold that computer hard drives are subject to search at the border just like anything else.  Reversing the decision by District Judge Dean Pregerson, the unanimous decision by Judge Diarmuid O’Scannlain “reasons that the greater storage capacity of computers does not make computer searches at the international border sufficiently different from other searches involving physical items.”

Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.

With respect to these searches, the Supreme Court has refused to draw distinctions between containers of information and contraband with respect to their quality or nature for purposes of determining the appropriate level of Fourth Amendment protection.

Arnold’s argument that a computer hard drive is more akin to a home was rejected by the court.

Here, beyond the simple fact that one cannot live in a laptop, Carney militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is “readily mobile.” Carney, 471 U.S. at 391. Second, one’s “expectation of privacy [at the border] . . . is significantly less than that relating to one’s home or office.” Id.

Oh boy.  And so we return to that old, yet lovable tenet of appellate review, remembering the rubric while forgetting the rationale.  Bear in mind the  Boucher case on our side of the country has yet to be reviewed.

Yes, of course a person can’t live in a laptop.  You don’t have to go to law school for that one.  But the fact that a home isn’t “readily mobile” isn’t the only reason why homes are given the greatest degree of constitutional protection.  At best, the “readily mobile” element has been the excuse of first resort for denying protection to automobiles, not the rationale for protecting the sanctity of an individual’s personal privacy within their home.

While I can’t say that this would have been the approach I would have taken had I argued the case, the analogy is not as easily dismissed when one considers the expectation of privacy in the content of a hard drive relative to the expectation of privacy one expects within their home.  Or the nature of what exists, even if only digitally, inside the guts of a computer when compared to what’s kept within the drawer of a night table.

I have  posted with some  regularity about the pathetic fact that courts are ill-equipped to deal with technological advancements.  Reliance on precedent, good for stability in the law, is bad then new things happen that don’t fit the paradigm.  The need to shove a square peg into a round hole seems to stymie the ability of courts to comprehend why old precedent doesn’t neatly apply.  This is already a problem, and it’s going to get much worse as new technologies butt heads with old law.

My approach to this problem, the issue of what is subject to search at the border, is to revisit the rationale for allowing a search at the border in the first place.  When there was nothing that could be searched that would reveal anything particularly private about the person, allowing a full blown search without any cause at all didn’t seem all that unfair. 

The government’s interest in preventing smuggling, the introduction of foreign diseases and plagues, and collection of taxes all presented fairly strong reasons to search, while the individual’s need to protect his privacy was relatively weak.  After all, what did the individual have on him that was so private?

But a hard drive is different.  It potentially contains voluminous personal information, or perhaps significant corporate information, that can be extraordinarily private.  From medical information, to legal, to trade secrets, to naked photos of one’s spouse.  Whether you think it should isn’t the point.  It can, and does, should the laptops owner choose to put such things on it.  Should border guards be able to look at naked photos of a person’s spouse? 

On the flip side, the content of a hard drive implicates none of the government’s reasons for searching at the border.  Well, there is one reason.  They might find evidence of a crime, such as downloaded porn.  But then, generalized law enforcement was never a primary rationale for border searches, just a fortuitous offshoot.

The easy reaction from those who are supplicants to governmental authority is to exclaim, if you don’t want the border agents oogling your wife’s naked pictures, don’t put them on your hard drive.  True.  And what else should we not do in our lives that we are entitled to do, that is legal to do, that we want to do, because the government might reach into our personal lives and enjoy a good ogle?

Judge Pregerson got it when he concluded that computers are like diaries, holding our personal secrets.  The circuit didn’t by calling it a container like any other.  Maybe you can’t blame the circuits judges, since computers are just those things that the secretaries type into after they finish dictating.  I don’t know how many federal judges have their own Facebook page, but I bet it isn’t many.  Perhaps the world is flying past these decision-makers at such a rapid pace that my expectation that they keep up, at least a little bit, is unreasonable.

But at the end of the day, these decisions fail to recognize what technology means in our world.  To the precedent-lovers, I say you’re out of touch.  We need to recognize that old school jurisprudence does not apply well to new technologies, and the law needs to start adapting before we become a disreputable anachronism.