U.S. Appeals Court Expands Right to Search Laptops

Rhett Pardon
SAN FRANCISCO, Calif. — Business trips just got more complicated for those relying on laptop computers.

In a boon to prosecutors, a federal appeals court has ruled that U.S. guards at international borders may search and seize the contents of laptop computer files without probable cause.

The ruling last month by the 9th U.S. Circuit Court of Appeals stemmed from the case of a suspended lawyer and former judge who was stopped by Canadian border authorities in 2004 when he landed in British Columbia on business following a stay in Las Vegas.

Stuart Romm appealed lower court decisions to the 9th Circuit after he was found guilty of child porn images that were retained in a cache folder.

When Romm passed through Canadian customs, authorities found a 1997 Florida conviction for soliciting sex from an undercover agent posing as a 14-year-old on the Internet.

He was denied entry and sent back to U.S. authorities in Seattle who conducted a search of his computer, finding deleted child porn cache images.

Romm admitted to authorities that he visited child porn sites, viewing and enlarging the pictures during a stay in Las Vegas, but later deleted them from his computer.

At trial, the government said it used EnCase software to recover deleted files as well as information showing when the files were created, accessed or modified.

Based on 40 images deleted from his Internet cache and two images deleted from another part of his hard drive, Romm was convicted of knowingly receiving and possessing child porn in violation of 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B).

Romm appealed both of these convictions, as well as his concurrent mandatory minimum sentences of 10 and 15 years.

The 9th Circuit was called to decide whether, absent a search warrant or probable cause, the contents of a laptop computer may be searched at an international border and, if so, what evidence is sufficient to convict its owner of receiving and possessing child porn.

The federal appeals court agreed with the government’s case, holding that authorities “forensic analysis of Romm’s laptop was permissible without probable cause or a warrant under the border search doctrine.”

It also held that there was sufficient evidence for the jury to find the images in Romm’s Internet cache were visual depictions, and that he both received and possessed these images.

The court affirmed his convictions, but remanded the case back to the lower court.

The case is U.S. vs. Romm, No. 04-10648.