No suspicion needed to search laptops at U.S. borders, says Ninth Circuit

Computerworld - In a ruling that's likely to come as a disappointment for privacy rights advocates, the U.S. Court of Appeals for the Ninth Circuit this week held that customs officers need no reasonable suspicion to search through the contents of any individual's laptop at the country's borders.

The ruling reversed an earlier decision by the U.S. District Court for the Central District of California, which had granted a motion seeking to suppress evidence gathered from such a search in a case involving child pornography. In arriving at that decision, the district court ruled that customs officers indeed did need to have reasonable or particularized suspicion for searching through laptops at U.S. borders.

The case involves a man named Michael Arnold, who was arrested in 2005 on charges of transporting child pornography on his laptop. According to a description of the case in court records, Arnold was returning home from a three-week vacation in the Philippines in July 2005, when he was pulled aside for secondary customs screening at Los Angeles International Airport.

A customs officer who was inspecting Arnold's luggage asked him to start his computer and had it examined by colleagues who found several images of what they believed were child pornography on the computer and in several storage devices that Arnold was carrying with him.

A grand jury later charged Arnold with knowingly transporting child pornography in interstate and foreign commerce, and for knowingly possessing a hard drive and CD-ROMs containing more than one image of child pornography.

Arnold filed a motion asking for the evidence against him to be suppressed, arguing that the search of his computer and storage devices by customs officers had been unreasonable and unwarranted. The district court ruled in his favor on the grounds that reasonable suspicion indeed needed to have existed for customs officials to have conducted the search.

The government filed an appeal against that decision essentially arguing that reasonable suspicion standards did not apply to searches at the border.

In concurring with that view, the Ninth Circuit yesterday rejected Arnold's arguments that reasonable suspicion was needed to search a computer because of its ability to store large amounts of data, ideas, e-mail, chats and Web-surfing habits. It also rejected Arnold's argument that a higher level of suspicion was needed for computer searches at the border because of the risk of "expressive material" being exposed in such searches.

"We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," noted Judge Diarmuid O'Scannlain, who wrote the opinion of the three-judge panel.

In writing the opinion of the appeals court, Judge O'Scannlain cited numerous cases to show that courts have long upheld suspicion-less searches of closed containers and their contents at U.S. borders. These include searches of items such as a traveler's briefcase, purse, wallet or pockets. Citing one such case, Judge O'Scannlain noted that generally, "searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border."

O'Scannlain noted that the Supreme Court has called for a reasonable-suspicion standard for certain types of border searches such as those that could cause exceptional damage to property or those conducted in a "particularly offensive manner." Neither of those situations applied in Arnold's case, he said. He also pointed to a decision by the Fourth Circuit Court of Appeals upholding the warrant-less search of a vehicle that was entering the U.S. from Canada.

In that case, the search resulted in the discovery of a videotape -- and, subsequently, other material -- suggestive of child pornography. As a result, the Fourth Circuit Court held that warrant-less searches were OK because requiring otherwise would have imposed an "unworkable standard" on customs officials. "We are persuaded by the analysis of our sister circuit," O'Scannlain wrote.

The Ninth Circuit Court's ruling comes amid growing concern over the issue of laptop searches at U.S. borders.

In February, the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF), two San Francisco-based civil liberties groups, filed a lawsuit in California citing complaints from travelers of excessive screenings at border entry points, including inspections of the data on laptops, cell phones and other electronic devices.

The lawsuit was filed in U.S. District Court in San Francisco. It asked the court to order the U.S. Department of Homeland Security's Customs and Border Protection (CBP) division to release records relating to its policies and procedures relating to such screenings and searches. In the complaint, the ALC and the EFF noted that they had heard from travelers who claimed that CBP staffers inspected and sometimes copied the contents of their laptop files and cell phone directories without providing any reason for doing so.

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