Indeed, if we accept the government's argument, there is no reason to restrict this doctrine to border searches. A search at the border is permissible because it is "reasonable." It is "reasonable" because the government has a good reason to do it -- to protect the borders. But, just try flying domestically without being patted down and having your luggage examined. Certainly such a "search" on a domestic flight is "reasonable." Oh, and on a train or bus as well. Try entering any federal property, such as a federal office building, military facility, or courthouse. You and your belongings are subject to search, but does this give carte blanche for examining, copying, or analyzing the contents of electronic devices at any of these places? I think not.
I'm all for catching child predators and terrorists, as I think the vast majority of us are. If we keep the warrantless and suspicion-less searches limited, then these types of searches might be "reasonable." Even without suspicion, it is reasonable at an international border (or even at the airport) to ask someone to boot up their computer to make sure it is really a computer, and is not being used to transport illegal bombs or drugs. That's what should be considered "reasonable."
If there is some suspicion (and perhaps what Arnold was doing was suspicious enough, perhaps not), the border agents can make a cursory inspection for a specific list of prohibited contraband (for example, child pornogrpahy), just as they could rifle through files in a briefcase to look for kiddie porn in a magazine. Anything more intrusive should require either greater suspicion or probable cause and a warrant. Sure it would be nice to be able to mirror the hard drives of suspected terrorists or their families, friends, or associates and create a super database of associates and communications (similar to what is done with computers seized on the battlefield in Iraq or Afghanistan). It would be nice to do that without a warrant, even if they didn't cross the border. But how do we know they are suspected terrorists? Shouldn't a "reasonable" search at the border require some level of suspicion?
What is needed is some limit on governmental search and seizure powers for electronic information, even at the border. Overall, to pass constitutional muster, the search must be reasonable, but more leeway could be granted to the Customs and Border Protection Service because of their mission, which is essentially to prevent contraband from entering the country. Once you expand that mission to gathering information about any violation of law (tax laws, copyright law, SEC reporting laws, or sodomy laws, to name a few) and to "gathering intelligence" about potential crimes (for example, terrorist patterns), the scope of the permissible search becomes, as in the government's argument, "plenary".
That's where reasonableness ends. To give border agents unfettered authority to search the full contents of anyone's computer, for any reason, defies common sense and constitutionality. To allow the "seized" data to be carted off to a massive and unrestricted law enforcement and intelligence database is likewise unreasonable. As James Madison stated in 1788 (anonymously, by the way) in Federalist 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Some border searches of laptops are reasonable, even without suspicion. Some are reasonable with only "specific and articulable facts" to lead one to believe that there is evidence of specific wrongdoing on the computer. And some searches, seizures, and copying of computers are just flat out unreasonable. For example, reading attorney-client or priest-penitent privileged and personal files. It isn't all or nothing, despite the government's arguments to the contrary.
Now, can I get my laptop back?
SecurityFocus columnist Mark D. Rasch, J.D., is a former head of the Justice Department's computer crime unit, and specializes in computer crime, computer security, incident response, forensics and privacy matters as Managing Director of Technology for FTI Consulting, Inc.
This article originally appeared in Security Focus.
Copyright © 2008, SecurityFocus
Anon rodent says: "Terrorists win, again"—if you still believe this is all about terrorism.
While you focus primarily on personal privacy issues, what about business? You might be returning from a field-research trip, some conference, contract negotiations or whatever, your computer might be filled to the brim with critical business or even NDA-material, or maybe your latest novel or critical analysis of modern-day fashism that makes government X look bad. Now would you please hand that over, decrypted, for reasons of national security, to be copied, analyzed, stored?
Invasive searches like the ones described lead to people no longer carrying any data of any value whatsoever, thereby curbing travellers' work efficiency -> "Terrorists win". So if you bother to take along a computer at all, you will have all data on some secure remote sever, and you will rather not put the server data (and no encryption, no hidden partitions, no nothing) on the machine but in your head. If you believe in secure remote severs that is. Now if that machine got inspected, you would be suspicious as hell, and you know what happens to suspicious people who will not admit. They get special treatments, sometimes even a free vacation in an interesting place. Like Syria. So you might better fill your machine with some random "identity" bull in order to make it look "pure". Thereby, being denied privacy essentially promotes a culture of lies and deception. I am not even touching on the inherently connected issues of classism and racism that determine who is searched and who is not.
read the caess i listed far earlier. if consent is requested you can say no, they can only search (other than as prescribed in Terry) if they make an arrest or have a warrant or there is immediate articulable danger (clear and present). in a Terry Stop they may detain only in place, you are not compelled, nor can you be punished, to answer. they may "frisk" only your outer clothing (no bags) ad they may only remove in that "feeling" frisk a weapon that would put them or the public in jeopardy, e.g. a gun.
anything more requires arrest or warrant. they courts (higher courts) will NOT look favorably on BS stops and arrests.
i know, i've been there (court).
and most of all...
also see: http://edwardlawson.com/
at Bhavin Desai
really? then read Royer v. Florida.