Of laptops and US border searches

The consequences of the government's argument would be that they could, at the border, seize your daughter's iPod and lock her up if they thought the songs were not licensed. They could copy the entire contents of your computer, read your e-mail, medical records, communications with doctors, lawyers, or priests. They could examine deleted files, create a database of your friends and associates, and provide any or all of this information to the CIA, Interpol, the NSA, the FBI, or for that matter, the Iraqi intelligence services. All without probable cause, suspicion, or warrant, because you had the unmitigated gall to cross the border with your laptop.

Encrypting files on the laptop would be of little utility because, if they win their argument in another border search case in Vermont, they could compel you to provide them with the encryption key. The only thing you could do is not take your laptop or wipe it clean before you come back.

The consequences of the defendant's argument are likewise unappealing. If the government could not search computers at the border (or needed reasonable suspicion, which they don't need to search luggage), there is some merit to the argument that the computer will become the medium of choice for transporting contraband (although it's still easier to simply e-mail it to yourself.)

Luggage or laptop?

The government's argument is predicated on the assumption that a laptop is no different from any other container. Yet, that assumption is simply is not true.

Computers contain vast quantities of confidential and private information, communications, and relationships, for which most people would agree should be maintained with a reasonable expectation of privacy, even when they cross the border. While all of this information is entitled to legal protection against unreasonable (e.g. warrantless) searches by the government inside the country, some of it is entitled to even greater protection. Stored electronic communications, privileged materials, trade secrets, financial records, and other information are particularly protected against government intrusion.

While most people do not travel internationally with a copy of every chat they have ever had, or every Facebook friend's picture in their Samsonite, or every picture they have of their boyfriends or girlfriends, they have exactly this information on their laptops. They have their checkbook information, passwords, financial records, medical records, correspondence, records of books purchased, Web sites reviewed, and more. In short, communicative and expressive materials.

In 1958, the State of Alabama required the NAACP to provide it with the names and addresses of all of its members, a requirement that the Supreme Court held violated the expressive and due process rights of the organization. Yet, according to the current government's argument, if this information was contained somewhere on a laptop computer traveling across national borders, the information could be accessed, copied, and entered into a central depository, even absent of any evidence of criminal activity.