Passwords Can’t Protect Us Anymore
By: Matt Barber
From the latest iPhone to sleek, lightweight laptop computers, we live in a world increasingly reliant on electronic devices. Everything from family photos to last year’s taxes and even trade secrets are only a click away. While we rely on passwords and fingertip scanners to protect this information, many people are still unaware of the federal government’s authority to search devices such as laptops, PDAs, and cell phones of American’s returning to the country.
Border agents and customs officials may search the contents of these devices without probable cause and pore through any private data you may have saved on these devices.
On April 21, 2008 American civil liberties were dealt another blow when the 9th Circuit Court of Appeals decided the case United States v. Michael Timothy Arnold. This unanimous three-judge decision upheld the legality of laptop searches by border agents without probable cause. The court overruled a lower court’s ruling that digital devices were “an extension of our own memory” and were protected against searches without probable cause.
In the court’s opinion, written by Judge O’Scannlain, he remarked, “Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.” O’Scannlain chided Arnold for his argument that his laptop was like a home and should receive the same protections, by stating that you cannot live in a laptop and that it travels with you, so there is less privacy expectation. However, I fail to see how Judge O’Scannlain can make this observation and then overlook the fact that you can’t even pack a shirt in a laptop — it’s hardly an ideal suitcase.
Clearly laptops and other personal electronic devices are protected against warrantless search and seizures by our Constitution’s Amendment IV.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This Amendment had been protecting citizens since the founding of this country and is one of the most important rights we have as Americans. These recent rulings are clearly a violation of our rights against search and seizures without probable cause.
Personal devices such as laptops, cameras, PDAs, and cell phones all logically fall under “papers and effects,” as stated in the Fourth. In a time in which our forefathers were writing with quills on parchment, these “papers” were deemed worthy of protection because of what people kept records of on paper. In a world that is dominated by wireless communication and transactions, should our personal information stored on these devices not also be considered “papers.” After all, they are serving the same purpose as those of our forefathers. The Federal Government should not be able to stomp on the 4th Amendment Rights of its citizens solely because these “papers” are in a different medium. However, because two Appeals court have made similar rulings in two separate cases it is unlikely the Supreme Court will hear this issue.
Now that we know border agents and customs officials can search laptops and other personal electronic devices upon reentering the United States we must ask what these officials do with information. After reading through a release by the U.S. Customs and Border Protection (CBP), a department of Homeland Security, I was unable to find any information about what information they are able to look at and what happens to the personal information after these searches.
Congressional investigators speculate that these officials make digital copies, or “mirror images,” which would allow them to go back and look at the information. For a practice that the CBP contends is completely legal they are awfully quiet about the details of this practice. In fact, the CBP will not release figures on the number of devices confiscated and searched and how commonplace this practice is. As with any act that tip-toes dangerously close to invading civil liberties, and in my mind clearly does, it is important that the Government release facts and figures that allow for adequate study and review of these policies.
Matt Barber is a junior at the University of North Carolina at Chapel Hill, and policy intern with Lawson for Congress. He is working towards a double-major in Political Science and Business Administration.
July 18th, 2008 at 3:29 pm
Good job Matt. Touche, that would be one for you. I agree wholeheartedly. One would have to feel that this is just another attemp by a government gone south to in some way corrall and monitor it’s citizens. And I am just as certain that this practice should be done in the name and deterrance of “”Terrorism”".
July 18th, 2008 at 4:44 pm
i believe the court’s decision should be appealed, and the argument made that the court must explain first why “The right of the people to be secure in their persons, houses, papers, and effects, ” does NOT include the contents of one’s laptop OR home PC to be included under “papers, and effects.”
yes, the Founding Fathers “wrote with quill on paper” but could they have possibly intended to exclude any “future ways of writing”??? i certainly hope not!