We've noted, repeatedly, how troubling it is that customs seems to feel no duty to obey the 4th Amendment at the border, and that the courts have allowed this. It's even worse when it comes to searching digital devices, such as laptops. As we've explained before, what you have access to via your laptop is entirely different
than what you pack in a suitcase for entering the country:
- You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
- The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.
And this becomes even more ridiculous in the era of cloud computing, where a drive may be mounted over the network, and thus never actually cross the border at all -- and yet, Homeland Security seems to think it has the right to search all of this, and the courts have mostly agreed
And, once again, we have yet another appeals court ruling that says this is fine even if
the laptop is taken away from the customs station and brought into the country. We've had similar rulings
in the past, and this one involves laptops that were taken away from the border and brought to another location, 170 miles away, where they were searched. The lower court said this evidence could not be used, but the appeals court reinstated the evidence, claiming that tossing out such evidence "would only reward those individuals who, either because of the nature of their contraband or the sophistication of their criminal enterprise, hide their contraband more cleverly or would be inclined to seek entry at more vulnerable points less equipped to discover them."
But that makes no sense. I mean, if you're good at hiding your "contraband" that's already true. Nothing about this ruling changes that. All this ruling does is say that it's okay for border officials from Homeland Security to search through your stuff without reasonable suspicion. It's not about rewarding people who better hide things, it's about the basic requirement
of the 4th Amendment that there be probable cause before the government can take your stuff and search it. Only the dissenting judge seemed to recognize this basic issue in the ruling, which is embedded below, noting: "I add my voice to the chorus lamenting the apparent demise of the Fourth Amendment."
The majority ruling claims
that it's not setting up an "anything goes" situation at the border, but it's difficult to see how it's placed any limits at all on Homeland Security. It claims that it's fine to search laptops at the border, because Homeland Security and ICE have a compelling reason to keep material out of the US that it doesn't want crossing the border. But, when it comes to digital content, that's just silly. No one is crossing the border with a laptop to "get content into the country." They can do that using the internet just fine. Claiming that searching the contents of a laptop are like searching a suitcase is as if you are technically illiterate.
Of course, since this is a child porn/child abuse claim, it's easy to say that it's a "good thing" that the search caught this guy -- which it did. And I'm happy he was eventually arrested. But I'm still troubled with how the evidence was collected, and anyone who crosses the border with their computers should be equally concerned. Don't let the fact that this case
was about child pornography detract from the important issues about your own privacy rights concerning information stored on a laptop.