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Your Laptop is an Open Book

Gregory A. Piccionelli
WARNING: Persons entering into the U.S. are subject to random searches of the contents of their laptop computers and portable storage devices. Government agents may open and inspect each and every file on your computer if they wish. Travelers may also be detained for hours and their computers and storage devices may be confiscated if sexual photographs or videos of a young-looking person stored on the traveler's computer or portable drive are discovered.

This warning is not one you are likely to see posted in any American airport or international border crossing into the U.S. Nevertheless, it is an accurate admonition that should be taken seriously in light of a ruling last month by the 9th U.S. Circuit Court of Appeals that customs officials at the border have almost unlimited authority to randomly pick travelers out of line and search the contents of their laptops and portable storage devices.

The ruling in U.S. vs. Arnold by a three-judge panel reversed a U.S. District Court decision that said such searches require reasonable suspicion of unlawful conduct.

The case involves Michael Arnold, an American citizen who was pulled aside for a random laptop search by U.S. Customs and Border Patrol officer Laura Peng after Arnold arrived at Los Angeles International Airport from the Philippines. After Peng and another officer booted up Arnold's computer, they noted two folders on the desktop labeled "Kodak Pictures" and "Kodak Memories."

The officers then proceeded to inspect the photos in the folders. (Perhaps the inspection of the contents of the folders was necessitated by national security concerns. Perhaps border agents have been informed by the CIA that al Qaeda terrorists feel that important terror planning sessions are important "Kodak Moments" that they photograph and store in the "Kodak Memories" folders on their computers.) Eventually the diligence of the officers paid off, and they found a photo of two nude women.

Immediately after the discovery of the single photograph of two nude women on Arnold's computer, supervisors were summoned, and they, of course, called in special agents with the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE). The ICE agents detained Arnold for several hour, during which time he was questioned about the contents of his computer and a flash drive that the small army of homeland protectors had by then also discovered to be in his possession.

While Arnold was being detained, ICE agents also thoroughly examined Arnold's computer and portable drive. During the examination, the ICE agents discovered what they claim looked to them to be child pornography. Quicker than George Bush can mangle a sentence, the officers seized Arnold's computer. Arnold was subsequently released by ICE, but later charged by a grand jury with violations of federal laws prohibiting the possession and transportation of child pornography.

In Arnold's defense, his attorney successfully sought and obtained an order from U.S. District Judge Dean Pregerson suppressing the evidence obtained by the customs officials at LAX, after ruling that they had violated Arnold's Fourth Amendment right against unreasonable searches.

Judge Pregerson held that the law required the customs officers to have some reasonable suspicion that Arnold was engaged in illegal activity before they would be authorized to search the contents of his laptop, and according to the judge, that suspicion was absent.

In reversing Judge Pregerson's decision, the 9th Circuit ruled that that no "particularized suspicion" was necessary before a laptop computer could be searched at a U.S. border crossing.

The decision, rendered by the second-highest federal court in the land, was primarily based on what is called "the border-search doctrine." The doctrine states that the government's interest in preventing the entry of unwanted persons and their effects is greatest at the international border.

As such, and pursuant to the border-search doctrine, federal agents at our national border, or its functional equivalent, such as an international airport, have much greater authority to conduct searches of persons and containers than they would otherwise have. Contrary to the lower court's decision, the appeals court tribunal concluded that the border-search doctrine applied to Arnold's circumstances, and that the search and seizure of his computer equipment was lawful. The court also rejected Arnold's claim that the border agents had exceeded their authority by conducting the search in a "particularly offensive manner."

In support of his position, the defendant argued that digital files stored in a laptop computer, which are often very private, should be accorded more protection from government intrusion, because they are more like the contents of a human mind or private information in documents stored in a home than they are like physical objects stored in a suitcase or purse.

Dismissing these arguments, O'Scannlain writing for the panel concluded that "[t]here is nothing in the record to indicate that the manner in which the [customs] officers conducted the search was 'particularly offensive' in comparison with other lawful border searches."

Interestingly, however, O'Scannlain did acknowledge that "the Supreme Court has drawn some limits on the border-search power." Specifically, he noted that the Supreme Court has held that reasonable suspicion is required to search a traveler's "alimentary canal."

In celebration of this very generous preservation of my freedom, I have decided to test the boundaries of the privacy rights I have in my alimentary canal the next time I return home to the land of the free by including on my travel laptop a digital copy of the video of my most recent colonoscopy in a folder on my computer's desktop prominently displaying the label: "Private — Videos of My Alimentary Canal."

Seriously though, the decision in U.S. vs. Arnold could pose some real problems for adult-content producers and others associated with the industry.

The ruling means that any and all computer files on any laptop computer being brought into the country can be thoroughly examined by government agents, even though the traveler has neither done anything wrong nor has engaged in any suspicious behavior. This could lead to disastrous results for many people in the industry who don't think twice about possessing lawful adult content on their laptop computers as they travel in and out of the country. And if you are thinking that perhaps the problem posed by the Arnold decision is limited to those persons that engage in the vile acts of creating, distributing or promoting child pornography, think again.

Remember, Arnold's problems began with one simple photo of two nude women. There is nothing in the published opinion of the case that indicates that the original photograph discovered by Peng and her colleague depicted a minor or even a young-looking woman.

Consequently, unless you are prepared to travel with 2257 documents corresponding to all the erotic content you may have stored on your computer, you may well be putting yourself at the mercy of the next Peng.

Simply put, the ruling in U.S. vs. Arnold means that carrying digital files of legal adult content across the border in a computer now apparently carries the risk of potentially being randomly selected and detained for hours if some border agent sees a photo on the computer that he or she feels is "pornography."

Technically, the ruling in U.S. vs. Arnold is controlling only in the Western states comprising the 9th Circuit. But since that 9th Circuit tends to be among the most liberal federal circuit courts, it is unlikely that any defendant in Arnold's position would fare any better anywhere else in the country. Given that reality, I believe that it might well be prudent to treat the 9th Circuit decision as pretty much laying down the law of the land unless and until it is reversed.

Arnold's attorney has indicated that she plans to seek an en banc review of the decision. If her petition is granted, the case will be reheard by all the judges in the 9th Circuit, like a super-tribunal. Given the fearful environment fostered by our commando in chief, however, I am not optimistic that the 9th Circuit en banc will reverse the decision of the tribunal or that the privacy rights we once enjoyed in our digital documents will be restored any time soon.

Thus, in my opinion, if the 9th Circuit's decision in U.S. vs. Arnold stands, it will likely result in an appalling, unnecessary, and potentially permanent loss of some of our cherished privacy rights, as well as a further erosion of our constitutional right to be protected from unreasonable searches and seizures. Should that tragedy indeed occur, it will be yet another example of how many of our freedoms are being sacrificed at the illustrious altar of U.S. "national security" needs.

The Bush administration is, of course, elated with the 9th Circuit ruling. The U.S. Attorney who is prosecuting the case praised the 9th Circuit decision in a written statement in which he justified the inevitable loss of privacy and freedom by predictably stating that the "government needs to have the ability to restrict harmful material from entering the country, whether that be weapons used by terrorists, dangerous narcotics or child pornography." I absolutely hate child pornography and those that abuse children with its making. But I also despise the damage done when our government conflates the risk of bio-terrorism or nuclear terrorism with that posed by kiddy porn. Even I would support the government's right to temporarily impose marital law to prevent a nuclear attack on Manhattan. But I certainly would not support such an action to catch a child pornographer. It is frightening that we are in an era in which we must seriously wonder if U.S. attorneys, like the one prosecuting Mr. Arnold, are unwilling, or perhaps unable, to make such a distinction.

It would seem that it is a good time once again to ponder the words of Benjamin Franklin when he admonished his countrymen at a time of much greater danger to our then-fragile union with the following: "He who gives up essential liberty for a little temporary security deserves neither liberty nor security."

Gregory A. Piccionelli, Esq. is an Internet and adult entertainment attorney at Piccionelli & Sarno. He can be reached at (310) 553-3375 or at greg@piccionellisarno.com.

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