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No Suspicion Needed to Search Laptops at U.S. Borders, says Ninth Circuit

Child pornography ruling seen as a disappointment for privacy rights advocates.

By Jaikumar Vijayan

April 22, 2008 — Computerworld — In a ruling that's likely to come as a disappointment for privacy rights advocates, the U.S. Court of Appeals for the Ninth Circuit this week held that customs officers need no reasonable suspicion to search through the contents of any individual's laptop at the country's borders.

The ruling reversed an earlier decision by the U.S. District Court for the Central District of California, which had granted a motion seeking to suppress evidence gathered from such a search in a case involving child pornography. In arriving at that decision, the district court ruled that customs officers indeed did need to have reasonable or particularized suspicion for searching through laptops at U.S. borders.

The case involves a man named Michael Arnold, who was arrested in 2005 on charges of transporting child pornography on his laptop. According to a description of the case in court records, Arnold was returning home from a three-week vacation in the Philippines in July 2005, when he was pulled aside for secondary customs screening at Los Angeles International Airport.

A customs officer who was inspecting Arnold's luggage asked him to start his computer and had it examined by colleagues who found several images of what they believed were child pornography on the computer and in several storage devices that Arnold was carrying with him.

A grand jury later charged Arnold with knowingly transporting child pornography in interstate and foreign commerce, and for knowingly possessing a hard drive and CD-ROMs containing more than one image of child pornography.

Arnold filed a motion asking for the evidence against him to be suppressed, arguing that the search of his computer and storage devices by customs officers had been unreasonable and unwarranted. The district court ruled in his favor on the grounds that reasonable suspicion indeed needed to have existed for customs officials to have conducted the search.

The government filed an appeal against that decision essentially arguing that reasonable suspicion standards did not apply to searches at the border.

In concurring with that view, the Ninth Circuit yesterday rejected Arnold's arguments that reasonable suspicion was needed to search a computer because of its ability to store large amounts of data, ideas, e-mail, chats and Web-surfing habits. It also rejected Arnold's argument that a higher level of suspicion was needed for computer searches at the border because of the risk of "expressive material" being exposed in such searches.

"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," noted Judge Diarmuid O'Scannlain, who wrote the opinion of the three-judge panel.

 

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