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[ISN] If Your Hard Drive Could Testify ...


By Adam Liptak
The New York Times
January 7, 2008

A couple of years ago, Michael T. Arnold landed at the Los Angeles 
International Airport after a 20-hour flight from the Philippines. He 
had his laptop with him, and a customs officer took a look at what was 
on his hard drive. Clicking on folders called Kodak pictures and Kodak 
memories, the officer found child pornography.

The search was not unusual: the government contends that it is perfectly 
free to inspect every laptop that enters the country, whether or not 
there is anything suspicious about the computer or its owner. Rummaging 
through a computers hard drive, the government says, is no different 
than looking through a suitcase.

One federal appeals court has agreed, and a second seems ready to follow 

There is one lonely voice on the other side. In 2006, Judge Dean D. 
Pregerson of Federal District Court in Los Angeles suppressed the 
evidence against Mr. Arnold.

Electronic storage devices function as an extension of our own memory, 
Judge Pregerson wrote, in explaining why the government should not be 
allowed to inspect them without cause. They are capable of storing our 
thoughts, ranging from the most whimsical to the most profound.

Computer hard drives can include, Judge Pregerson continued, diaries, 
letters, medical information, financial records, trade secrets, 
attorney-client materials and the clincher, of course information about 
reporters confidential sources and story leads.

But Judge Pregersons decision seems to be headed for reversal. The three 
judges who heard the arguments in October in the appeal of his decision 
seemed persuaded that a computer is just a container and deserves no 
special protection from searches at the border. The same information in 
hard-copy form, their questions suggested, would doubtless be subject to 

The United States Court of Appeals for the Fourth Circuit, in Richmond, 
Va., took that position in a 2005 decision. It upheld the conviction of 
John W. Ickes Jr., who crossed the Canadian border with a computer 
containing child pornography. A customs agents suspicions were raised, 
the courts decision said, after discovering a video camera containing a 
tape of a tennis match which focused excessively on a young ball boy.

It is true that the government should have great leeway in searching 
physical objects at the border. But the law requires a little more a 
reasonable suspicion when the search is especially invasive, as when the 
human body is involved.

Searching a computer, said Jennifer M. Chacn, a law professor at the 
University of California, Davis, is fairly intrusive. Like searches of 
the body, she said, such an invasive search should require reasonable 

An interesting supporting brief filed in the Arnold case by the 
Association of Corporate Travel Executives and the Electronic Frontier 
Foundation said there have to be some limits on the governments ability 
to acquire information.

Under the governments reasoning, the brief said, border authorities 
could systematically collect all of the information contained on every 
laptop computer, BlackBerry and other electronic device carried across 
our national borders by every traveler, American or foreign. That is, 
the brief said, simply electronic surveillance after the fact.

The government went even further in the case of Sebastien Boucher, a 
Canadian who lives in New Hampshire. Mr. Boucher crossed the Canadian 
border by car about a year ago, and a customs agent noticed a laptop in 
the back seat.

Asked whether he had child pornography on his laptop, Mr. Boucher said 
he was not sure. He said he downloaded a lot of pornography but deleted 
child pornography when he found it.

Some of the files on Mr. Bouchers computer were encrypted using a 
program called Pretty Good Privacy, and Mr. Boucher helped the agent 
look at them, apparently by entering an encryption code. The agent said 
he saw lots of revolting pornography involving children.

The government seized the laptop. But when it tried to open the 
encrypted files again, it could not. A grand jury instructed Mr. Boucher 
to provide the password.

But a federal magistrate judge quashed that subpoena in November, saying 
that requiring Mr. Boucher to provide it would violate his Fifth 
Amendment right against self-incrimination. Last week, the government 

The magistrate judge, Jerome J. Niedermeier of Federal District Court in 
Burlington, Vt., used an analogy from Supreme Court precedent. It is one 
thing to require a defendant to surrender a key to a safe and another to 
make him reveal its combination.

The government can make you provide samples of your blood, handwriting 
and the sound of your voice. It can make you put on a shirt or stand in 
a lineup. But it cannot make you testify about facts or beliefs that may 
incriminate you, Judge Niedermeier said.

The core value of the Fifth Amendment is that you cant be made to speak 
in ways that indicate your guilt, Michael Froomkin, a law professor at 
the University of Miami, wrote about the Boucher case on his 
Discourse.net blog.

But Orin S. Kerr, a law professor at the George Washington University, 
said Judge Niedermeier had probably gotten it wrong. In a normal case, 
Professor Kerr said in an interview, there would be a privilege. But 
given what Mr. Boucher had already done at the border, he said, making 
him provide the password again would probably not violate the Fifth 

There are all sorts of lessons in these cases. One is that the border 
seems be a privacy-free zone. A second is that encryption programs work. 
A third is that you should keep your password to yourself. And the most 
important, as my wife keeps telling me, is that you should leave your 
laptop at home.

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