Wednesday, April 23, 2008

Soap Box Time

“Federal agents at the border do not need any reason to search through travelers' laptops, cell phones or digital cameras for evidence of crimes, a federal appeals court ruled Monday, extending the government's power to look through belongings like suitcases at the border to electronics,” is the lead paragraph of an article on the Wired Blog Network.

“The unanimous three-judge decision reverses a lower court finding that digital devices were "an extension of our own memory" and thus too personal to allow the government to search them without cause. Instead, the earlier ruling said, Customs agents would need some reasonable and articulable suspicion a crime had occurred in order to search a traveler's laptop,” the article continues.

The article contains a link to a PDF of the ruling by the U.S. Court of Appeals for the Ninth Circuit. It makes for interesting reading.

During July of 2005, Michael Arnold flew into Los Angeles International after a vacation in the Philippines. When he went through customs, Arnold was randomly selected for further scrutiny. While the agent inspected his luggage, she asked the sort of routine questions they ask at a time like that. As she went through the luggage, he was asked to boot his computer. The agent continued her questioning after handing the computer to another agent.

When the desktop full of files came up, the agent noticed two files in particular. One was named Kodak and the other Kodak memories. When he opened the file, he immediately saw a picture of two nude women. Arnold was immediately handed over to ICE. After being questioned, he was released. His laptop and external drives were seized as they contained images ICE believed to be child porn. About two weeks later, he was charged and subsequently taken to trial.

Arnold’s attorney argued that the border agents had no right to search the laptop; in fact, it was necessary for them to secure a search warrant as the contents were protected under our 4th Amendment rights. The lower court agreed and tossed the evidence. An appeal was filed and heard by the Superior Court whose decision came down on the side of the government.

What happened to the 4th Amendment? Did the Supreme Court repeal “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …?” I checked. You will be relieved to know the 4th Amendment has not been repealed. You may, or may not, be relieved to know it was “redefined” by the Supreme Court. A few of the cases were Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973); United States v. Ramsey, 431 U.S. 606, 616 (1977) and United States v. Flores-Montano, 541 U.S. 149, 153 (2004).

In a nutshell, the government is saying “we have an interest in anything you are bringing into our country. Any rights, any expectations to privacy, begin and end at the border.” That doesn’t sound unreasonable, does it?

Yeah, it does sound unreasonable to me. Amended or not, our constitution protects us from unreasonable searches and seizures. Empowering law enforcement agents to go on fishing expeditions without probable cause is absolutely wrong. The idea that an American citizen does not have any rights at an American border is ludicrous beyond words.

I’m not going to foam at the mouth over having luggage X-rayed before being loaded on an airplane. I don’t have a problem if luggage is X-rayed upon re-entering the country. If those X-rays reveal something suspicious, I don’t have a problem with a closer inspection taking place. Those are the times in which we live.

If a trained and competent border agent sees someone acting in a manner that reasonably seems suspicious, they should give that individual further scrutiny. The key word is “reasonable.”

Without probable cause, without reasonable cause, no law enforcement agent or officer should have the right to view the contents of anyone’s camera, cell phone, computer or any of those other marvelous inventions that allow us to store data.

There are all manner of files stored in my laptop. Some of those files are highly personal; files like my medical records for the last 20 plus years that I downloaded before taking off on my motorcycle to see the world. There are files that would enable someone to very easily steal my identity. You know there are nude pictures that I sure as hell don’t want someone drooling over. There isn’t one damned thing in the computer that is illegal and I would object to anyone viewing any of it without my permission. It isn’t anyone’s business.

The case that allowed the Superior Court to make this decision involved kiddy porn. The nature of the offense with which he was charged makes me want to cheer the agents that nailed him. That he was arrested as the result of a search that, in my opinion, was unconstitutional makes it impossible to cheer too loudly.

Life is sweet – because the Supreme Court ruled in the United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) that it is illegal to perform “alimentary canal” searches based on “mere chance” there might be evidence concealed.

2 comments:

NoirKat said...

It also seems to me that a citizen does not surrender their rights simply by leaving the country. To be treated, as if by leaving, I have done so is troubling to say the least.

deuddersun said...

Welcome to the Fourth Reich.

d.