In one of its better articles, the ABA Journal posts about a “coalition of civil rights groups and criminal defense attorneys,” including NACDL president-elect Lisa Wayne, suing the Department of Homeland Security over the search of laptop computers at the border.
The searches and seizures at issue, which took place between Oct. 2008 and June 2010, were also performed without any judicial review and pursuant to Homeland Security policy which sets virtually no limit on the scope of searches, the amount of time a traveler’s electronic device may be held, the suit contends.
Lisa Wayne of Denver says her laptop was searched in August 2008 at the Houston airport, without cause, as she was returning home from Mexico where she attended a trial advocacy program. Although, if this ever happens again, she says she will refuse to log on to her computer, she is fearful that regardless of what she does customs officials “may nonetheless detain her laptop and ultimately gain unauthorized access to its contents,” the suit says.
There have been numerous discussions about the propriety of border laptop searches, as well as Orin Kerr’s theory of technology neutral application of search and seizure law to new technology. This case has the potential to put the ability of the courts to the test.
Under existing law, the government has the authority to search and seize a laptop computer (or any tech variation on the theme) as a person crosses the border and seeks to enter the United States. The 4th Amendment warrant clause doesn’t apply, and we have no right to be secure in our papers and effects. Papers. What a quaint concept.
The theory behind this was justified by protecting our borders from those who might bring in diseases, whether personally or via plant or animal, or conceal items to avoid the payment of taxes, as well as safety precautions which were exacerbated by concerns about terrorism. As with most convenient rules, the rubric was remembered long after the rationale was forgotten.
But the rule worked generally well for centuries, until the laptop showed up at the border. Check it to make sure it doesn’t conceal a bomb? No problem. Makes sure there are no diseases (computer viruses aren’t really diseases, so they don’t count). Sure, a silly idea, but whatever. The problem is DHS isn’t satisfied that computers pose no threat of physical harm, and use this opportunity to defend the moral fiber of America by searching the content. Why? Because they can. Whether framed in terms of looking for terrorist content or illegal images of kiddie porn, anything on a computer is fair game.
To the extent there’s a saving grace, it’s that even border searches must be reasonable, though up to now, the operative law treats computers like any other sealed container and considers a search of a laptop to be routine, per the 1985 Supreme Court decision in United States v. Montoya de Hernandez, 473 U.S. 531. No appellate court has as yet recognized that the content of a computer isn’t a bag of diamonds, but contains thoughts and information that a person might not want others, including the government, to see.
The simple answer is that if you don’t want the government to know what’s on a computer, don’t bring it across the border. Of course, this defies modern reality and the pervasiveness of computer use in our lives. Computers are our diaries, files, calendar, lives. To shift the onus to Americans traveling abroad to either go computerless or suffer the border guard rifling through your hard drive offers a Hobson’s choice. We cannot do without our computer.
“Electronic devices like laptops, ‘smart’ phones, and external data storage devices hold vast amounts of personal and sensitive information that reveals a vivid picture of travelers’ personal and professional lives, including their intimate thoughts, private communications, expressive choices, and privileged or confidential work product,” the complaint reads.
The action further challenges the means by which the government does it’s dirty work. Since it may not be possible to check out every file in a computer while standing on the line at Customs, the government can seize the computer and hold it for as long as they want, thus denying people access to the computer and its contents. They might as well seize a kidney for what that does to people’s lives.
Moreover, the content of a computer, in the hands of someone wielding a bludgeon, presents insurmountable hurdles.
[A] 26-year-old graduate student, Pascal Abidor, who is an American and French citizen, reports the Associated Press.
Abidor says he was searched, handcuffed and held in a detention cell after U.S. Customs and Border Protection Agents ordered him to provide access to his laptop and spotted images of Hamas and Hezbollah rallies he had downloaded during his research for a doctorate in the modern history of Lebanon, the AP article says. He was traveling from Montreal to New York to visit his family at the time.
When he got his laptop back 11 days later it appeared that much of his research and personal files, including chats with his girlfriend, had been searched.
Fortunately, Abidor wasn’t prosecuted as an agent of the enemy for the content, and his content wasn’t destroyed or deleted, or his laptop held permanently.
Tacitly applying Kerr’s tech neutral approach, the government and courts have circumvented the issues raised by these border searches via the use of analogy to old law, comparing a laptop to a suitcase or file cabinet. Dan Solove at Concurring Opinions proffered an approach he calls 4th Amendment Pragmatism as a substitute, eliminating the Katz reasonable expectation of privacy test for “problems of reasonable significance.” It seems that this intrusion would fail under either test, and is permissible only because of courts’ reliance on the rubric developed at a time when absolutely nothing comparable to a laptop computer was under consideration. This case presents issues that show why the tech neutral approach will fail to protect privacy in the digital age. It’s an approach only a government agent could love.
The action offers an opportunity for a strong and credible group to mount a comprehensive frontal challenge to the application of old law to new circumstance, perhaps a last ditch effort to save the concept of privacy at the border, and maybe elsewhere. The courts must stop trying to stick the square peg of technology into the round hole of bootlegger search and seizure law, and develop a new 4th Amendment jurisprudence acknowledging that technology has changed beyond the point of trying to adopt these old concepts to incomparable circumstances. It’s just not working.
There are some bright spots elsewhere, with the rulings as to the use of GPS and cell records to “follow” people, but as yet the border remains as closed to privacy as ever. Hopefully, this coalition action will be our best opportunity to address the monumental privacy issues, the ones that bear neither connection to any legitimate purpose for a border search nor a sound respect for privacy.
Although this is an issue I’ve harped on for quite a while now, it bears repeating. Old search and seizure law is inadequate to address the issues arising in a digital world while maintaining any semblance of personal privacy. If the courts continue to stick their square peg into our round hole, we can kiss privacy good-bye.