Court Tells Travelers: Leave the Laptop Behind or Risk a Search
May 1, 2008
A federal appellate court ruled that the government can freely search and save the files travelers maintain on their laptops when coming back to the U.S. from an out of country trip. The case, United States v. Arnold, No. 06-50581, 2008 U.S. App. LEXIS 8590 (9th Cir., April 21, 2008) has put business travelers in a tizzy and may pique the attention of members of Congress. The case turns on the travails of Michael Arnold. As Arnold was re-entering the U.S. from a trip to the Philippines, he was pulled out of line at the checkpoint, questioned about his travels, and directed by an official of U.S. Customs and Border Patrol (CBP) to turn on his computer so they could verify that it was functioning. CBP officials opened files that appeared on the computer's desktop screen, discovered that they contained pictures of nude women, then opened other files and found images depicting what they believed to be child pornography. Arnold was arrested and his computer was seized. Nobody has a right to bring child pornography into the country. When CBP officials have a reasonable suspicion that a traveler is doing that, they should search the person's papers and digital papers to see if the crime of transporting child pornography is being committed. The case wasn't about that. Arnold's case was about what officials can do at the border when they have no reasonable suspicion. Should they be able to download everything on a computer hard drive? The court reasoned that because the search of the computer's contents occurred at the border, the same doctrine that permits CBP to search your suitcase permits its agents to cull through your computer or go trolling on your Treo or iPhone or whatever handheld electronic device you may be carrying. But computers are not like suitcases or cars. They often contain a person's most confidential communications, or a business's most closely held secrets. They contain information about what websites a person visited, with whom they communicated, and sometimes, the person's most confidential thoughts. There has to be at least some suspicion of illegal activity in the air before having our digital lives are laid bare. That's why CDT joined with civil liberties and civil rights groups, with organizations representing business travelers, and others, asking Congress to hold hearings on CPB policies about seizing digital information and electronic devices at the border. Capital One, the credit card company, asks: "What's in your wallet?" Now, before they leave the country on a business trip, some companies are asking their employees, "What's in your computer?" In effect, this court case tells travelers to leave their laptop behind if it contains something they don't want to share with the government.