SAN FRANCISCO, CA — “We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”That was the ruling out of the 9th U.S. Circuit Court of Appeals on Monday, and the decision may have far-reaching implications for international travelers. It was the second such appellate-court ruling in three years.
On its face, the decision revolves around international transportation of child pornography. In a nutshell, Michael Arnold was charged after Customs agents at Los Angeles International Airport discovered what they thought were child-porn images on the laptop computer he carried with him as he returned from the Philippines. A U.S. district judge suppressed the evidence, ruling its discovery violated Arnold’s Fourth Amendment protections against unreasonable searches and seizures. Prior to the search, the border agents had no reason to suspect Arnold had done anything wrong, the judge ruled.
In reversing the lower court’s decision, Circuit Judge Diarmuid F. O’Scannlain, writing for the three-judge panel, explained the defendant “failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.”
A similar 2005 decision by the Virginia-based 4th U.S. Circuit Court in U.S. v. Ickes involved a man who tried to drive across the Canadian border into the U.S. with child porn on his computer.
Both decisions are troubling to First Amendment attorneys. Marilyn Bednarski, the Los Angeles attorney who represented Arnold, said the 9th Circuit’s decision should make all international travelers uncomfortable.
“…[L]aptops are so much a part of our lives, and the level of intrusion [allowed by the 9th Circuit ruling] into what we keep stored in our laptops is extraordinary,” she told CalLaw.com. “What this decision allows [border agents] to do without limits is keep opening up and keep reading forever.”
That sort of search authority puts all sort of sensitive information at risk. Bednarski told CalLaw.com that border agents should be allowed to turn on laptops and other personal electronic devices to ensure they are not serving as disguises for explosives or other prohibited materials, but examining files should require a search warrant.
Bednarski plans to ask for an en banc review of the decision.
