Blown To Bits

Searched at the Border

Thursday, June 26th, 2008 by Ken Ledeen

At lunch today I did an informal survey.  The question was this:

Is it acceptable for Customs officers to search through the contents of your laptop, look at files, read your email, go through your pictures, pick over your web search history, check to see if you have any illegal MP3 downloads, maybe some movies?

There are actually three parts to the question.

  1. Is it legal to search all the electronic stuff you are carrying?
  2. Is it legal to do it without any “reasonable suspicion” that you’re doing something illegal?
  3. And, most importantly, how do you feel about it?  if it is legal, should it be?

There was 100% agreement, at least among the ten people at lunch today, that it was completely wrong to do so, and they presumed that it was either illegal, or, at least illegal without probable cause and maybe even a search warrant.

Not so.

On April 21, 2008, Judge Diarmuid F. O‚ÄôScannlain issued an opinion in the case of United States of America v. Michael Timothy Arnold.¬† Mr. Arnold, a forty-three year old man,¬† was returning from a trip to the Phillipines.¬† He landed at LAX and went through customs.¬† We’ve all done that – gone through customs that is.¬† They have an important function to peform; making sure that people don’t bring bad stuff into the country, things they haven’t paid duty on, animals, fruits that might harbor insects, contraband, and mostly drugs.¬† Mr. Arnold wasn’t a suspect, nor was he behaving in a suspicious way.¬† He was selected randomly for more careful screening.¬† In this case, the customs agent asked him to turn on his laptop, and proceeded to look through his photo album.¬† The agent found pictures of nude women and called in more experts.¬† They went through all his digital files and found images that they considered to be child pornography.

Mr. Arnold argued that the customs officers should not have been allowed to search his laptop without “reasonable suspicion,” and filed a motion to suppress.¬† The District Court agreed, but that finding was overturned by the Appeals court, as detailed in Judge O‚ÄôScannlain’s opinion.

Contrary to the opinion of my lunch companions, searching your laptop, your cell phone, your flash drive, iPod iPone, Blackberry – reading your emails, looking at your pictures, checking your web surfing history is all just fine – with or without “reasonable suspicion.”

But my point is not to argue the subtleties of the law, it is to recognize that, as we say so often in Blown to Bits, that quanititative changes have qualitative impacts.¬† Looking through your briefcase for undeclared purchases, searching your bag for the cheese you are trying to bring into the country, or for the kilo of cocaine, feels quite different from going through everything on your hard drive.¬† For many of us, our laptops contain a record of much of our lives: years of pictures, enormous email archives (mine’s about 2 GB.), every appointment we’ve had.¬† There is something inherently creepy about the notion of being laid bare in front of a customs agent simply because you are crossing the border.

We have strong legal protections for what we have in our homes.  The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” Homes used to be where we kept the record of our lives, the pictures, the correspondence, our entire music collection.  It was inconceivable that you would carry it all about with you. But no more.  You can fit quite a bit if personal history on a 120GB disk drive. The digital explosion blew a big hole in the wall of our house.  Many of us carry our history with us.

Once again our legal structures feel intuitively to be out of whack with the nature of the digital universe.  How profoundly will our privacy be violated if a customs agent can pour through our most intimate thoughts, read our digital diaries, explore our interests and desires, our corporate secrets and health records.

Like all the stories we tell about BITS, this one is not over, but the implication is both clear, and consistent with our other observations: those who make the laws, and those who interpret them need to bring a deeper understanding of the technologies that are so much a part of the fabric of our lives

One Response to “Searched at the Border”

  1. sandrar Says:

    Hi! I was surfing and found your blog post… nice! I love your blog. 🙂 Cheers! Sandra. R.