While the cases of Sebastien Boucher and Michael Arnold raised red flags about the implications for border searches of laptop computers, Homeland Security Czar Michael Chertoff has finally come clean and admitted that it is now official United States Government policy to view the contents of computers at the border because . . . they can.   As report in the Washington Post :

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including U.S. citizens — are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”

In a simpler age, the rule that there was no right to privacy in ones papers and effects at the border made sense, largely because there was no harm to it.  Technology has changed this forever.  We can now carry our entire lives with us on a hard drive, including our most personal and private information.  But the old rule persists.

While the rest of us recognize that a conflict exists, not so our protectors in the government.

Customs Deputy Commissioner Jayson P. Ahern said the efforts “do not infringe on Americans’ privacy.” In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had “plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant” to prevent drugs and other contraband from entering the country.

Homeland Security Secretary Michael Chertoff wrote in an opinion piece published last month in USA Today that “the most dangerous contraband is often contained in laptop computers or other electronic devices.” Searches have uncovered “violent jihadist materials” as well as images of child pornography, he wrote.

In the past decade or so, the nature of “contraband” has changed significantly.  It used to be drugs, or untaxed jewelry, that our border guards sought.  Perhaps the fellow carrying large sums of money without declaring it.  These were hard items, physical items hidden beneath undergarments, which would be found as a federal agent searched a bag at the gate on the way out of the baggage claim area.  No one questioned or challenged their authority to do so.

The 9th Circuit decision in Arnold reflects the problem that we face now, and will continue to face in far more insidious ways going forward.   Most judges don’t get technology.  Many of our old rules simply fail when applied to technological advancements, largely because judges comprehension of how technology works and how it is used by norman people (meaning non-judges) is foreign to their experience. 

While promoting judicial modesty, as if that were an end-goal in itself, through slavish adherence to precedent as applied to limited facts beyond the experience of most judges, courts are left to fit round pegs into square holes.  And people are burned in the process.

One day, someone will find something in a laptop that will make a press release from Homeland Security to show how they saved us from terrorism.  This will be used to prove that this policy works and is necessary to our survival.  There will be no press release about the thousands of laptops seized and searched where nothing of particular interest was found, though federal agents will sit around drinking coffee and having a good chuckle over photographs of some poor guy’s naked wife, perhaps painted like a cow (there’s a bit of irony, for you).

But even the sneak peak, which thus far has been largely used as a weapon in the government’s war on porn, has gone the way of the dinosaur.  It takes time to thoroughly vet a hard drive, and the government has crafted a policy to facilitate it’s own convenience:  They are now entitled to seize and hold laptops until they have had sufficient time to do whatever it is they want to do. 

Civil liberties and business travel groups have pressed the government to disclose its procedures as an increasing number of international travelers have reported that their laptops, cellphones and other digital devices have been taken — for months, in at least one case — and their contents examined.

If it was problematic to have federal agents run through a laptop at the airport, it’s an entirely different problem to have them seize and hold it for months, without cause.  One might, rightly or not, feel that it’s only a minor inconvenience for the agent to take a quick spin though the hard drive and, finding nothing of interest, be on one’s way. 

Our computer and other digital devices are our lifeblood today.  To lose it for a day is devastating.  To lose it for a week, or months, is intolerable.  This can cause massive disruption in one’s business and personal life.  And my guesstimate is that for every digital drive that contains anything even remotely of legitimate interest to the government, 100 thousand are pristine.  Yet our government is unconcerned.

As Marc Randazza points out, there is yet another disconnect between the policy, troubling as it is, and the execution.  Washingtonian policies are ultimately executed on the ground, with discretion left to an individual of dubious competency and intelligence.  These are grocery clerks in uniforms, and yet our lives are put in their hands and left to their sense of propriety.  Once again, the lowest common denominator rules.  Anybody want to argue with the pleasant fellow at the gate about whether he should seize your laptop for as long as he damn well pleases?

This situation, as former federal judge Chertoff correctly notes, is currently permissible under law.  Indeed, if there was any doubt, the 9th Circuit removed in Arnold.  While the Boucher case may give rise to a conflict between the circuits, it may also prove to be the downfall of reason as well. 

It need not be this way.  By going back to the source, the rationale behind the rubric that border searches require no cause, and recognizing the distinction between the content of a computer and the contaminated chicken or untaxed Rolex, there is a logical ledge to stop the slide downhill that our government relies upon for its policy. 

But this would require a degree of understanding of what a search of the contents of a computer implies, rather than easy resort to the old-line border search rules.  Whether courts are up to this level of comprehension is doubtful.  The only hope is that judges may come to appreciate the extent of harm the application of the old rule will cause to millions of travelers who will suffer the consequences despite having done no wrong.  Not that this seems to bother them greatly in other instances.

As technology evolves, and judges lag farther and farther behind, problems like this will worsen.  Will we have to reach the nadir before anyone in our government recognizes the pain it causes its citizens?

Update:  Wonder what worried a young man “coming into Los Angeles” on a big airliner in the 1960s?  Customs has come a long way since then.