Laptops open to warrantless government snooping

Laptop computers and other personal electronic devices such as cell phones, I-phones and Blackberries are increasingly attractive to government agents because of the vast amounts of data users store on them.  Unfortunately, in the absence of federal law protecting them from government searches without warrants or even reasonable suspicion of wrongdoing, federal courts are permitting such warrantless searches.

In a recent case out of the Southern District of Texas, a US citizen flying back into the United States from Bogota, Colombia, had his personal laptop computer seized and subjected to a warrantless search by Customs agents at George W. Bush airport near Houston.  The agents found what they were looking for — evidence of child pornography.  Their lack of surprise was the result of having previously identified the arrestee as a suspected child pornographer.

Divorcing our analysis from the distasteful nature of the offense — child pornography — two aspects of this case are particularly troubling.

First, why didn’t the government agents obtain a search warrant for the computer?  If the agents already suspected this individual of trafficking in child porn, why didn’t they simply go to a federal magistrate and secure a search warrant?  Second, and more troubling, is the almost cavalier manner in which the US District Court judge in Houston dismissed the suspect’s challenge to the airport search. 

As to the first question, perhaps the reason the federal agents did not obtain a search warrant was because they did not have sufficient evidence to secure one (that is, probable cause to believe the suspect had violated the law and that his computer likely contained evidence thereof); and that is was then simply easier to wait until the suspect travelled abroad and reentered the United States, at which point they could argue the government has plenary power to essentially search whoever and for whatever it wants.  It is also possible that the government did have sufficient probable cause to have secured a search warrant (which is a relatively easy procedure), but preferred to proceed via a “border search” in order to establish further precedent for such warrantless searches. In this instance, things turned out rather well for the government.

The manner in which the government proceeded turned out to be effective because the federal judge to whom the motion to suppress evidence of the warrantless laptop search was presented, concluded that such a search was simply not sufficiently intrusive to the suspect’s “body” or damaging to the computer.  The judge also concluded that an extensive search of one’s personal laptop is not sufficiently violative of a person’s privacy or dignity as to require a warrant or a greater degree of suspicion by the government before undetaking a search of data stored on a laptop computer.

Until this and similar decisions are overturned by a higher court, or unless the Congress passess legislation establishing at least minimal standards for such searches by government agents at ports of entry into the United States — and neither scenario appears likely in the short term, at least — laptops and other electronic devices that store data, are subject to warrantless search any time a person enters the U.S. by any means (train, boat, automobile, plane, or on foot).  No Fourth Amendment protection available.  Pack accordingly.

26 comments Add your comment

Byron Mathison Kerr

April 23rd, 2010
7:29 am

The judge also concluded that an extensive search of one’s personal laptop is not sufficiently violative of a person’s privacy or dignity as to require a warrant…

What?! Does this judge not understand what a laptop is? It’s the modern equivalent of a file cabinet containing personal records and correspondence.

Thanks for the insight, Bob; this sure was a wake-up call for me!

commoncents

April 23rd, 2010
8:15 am

While I agree that they should have had a warrant if it was suspected and disagree with the judge, I’m glad the criminal is off the streets!

Secondly, I don’t think people who take laptops and other electronic devices to public places should expect privacy… Public internet is generally unsecure, and the possibility of losing the device means that whoever finds it will have access to all stored information, including illegal images and whatever passwords you may have stored

YouAreUnCivil

April 23rd, 2010
9:02 am

It’s obvious this man was not Muslim or any other minority, because I doubt you would have much sympathy for him or anyone else in this situation. The rest of us are having our rights violated in this country on a daily basis (nothing new here). We can’t drive down a street or ride on an airplane. So, “Cry Me A River”.

No More Progressives!

April 23rd, 2010
9:39 am

YouAreUnCivil

April 23rd, 2010
9:02 am

The rest of us are having our rights violated in this country on a daily basis (nothing new here).

Name one.

LibraryJim

April 23rd, 2010
9:59 am

Ok, so where is the outrage from those on the left who howled in protest at the Patriot Act? They seem to be silent over Obama’s not only continuing it, but escalating and expanding it. Let’s see the protests we say during the Bush administration! (and let’s see what the Administration calls THEM over it).

scrappy

April 23rd, 2010
10:50 am

LibraryJim – I am outraged! I wish the media (or someone with clout) would stop covering the repetitive tea party and show some real news like this. Our rights & privacy protections under the 4th amendment are slowing being taken away and no one seems to notice. I criticized Bush for this and I will criticize Obama too.
commoncents – This doesn’t say he was connected to the internet, merely that the agents took his laptop and found the items on it. This is just like coming into your home and going through your filing cabinet. This cannot be allowed. I hope this is appealed. (also hope the guy doesn’t get away with child porn, but he is still supposed to be protected by the 4th Amendment.)

neo-Carlinist

April 23rd, 2010
10:51 am

was there not a laptop search issue in the post 9/11- “20th Hijacker” case? I have an idea; let’s all cross our fingers and wish really, really, REALLY hard that law enforcement types will cross their T’s and dot their I’s in the interest of prosecuting air-tight cases against all criminals. then again, what evidence did they have to suspect this person of being a child pornographer (previous conviction)? and citizen or not, I think all bets are off when you are re-entering the country. anyone who’s been searched for Cuban cigars or drugs when returning from Mexico or Central America is knows the drill. obviously, the federales knew this guy. this is a non-story if the guy’s laptop were clean, but it wasn’t.

Ragnar Danneskjöld

April 23rd, 2010
10:53 am

Mixed thoughts on this one. The broad Constitutional authority to control the borders, although generally ignored by our government as our neighboring countries are not much of a threat, seemingly gives the government power to do almost anything it wishes in that area. I doubt that child pornography files were within the ambit of what the founding fathers contemplated when they gave the government power to levy tariffs.

Were I the judge here, I think I would have taken the same 4th Amendment position as our genial host, and I would exclude the evidence obtained without warrant. The laptop seems to me no different than luggage, where there is a long-standing expectation of privacy. As I read the 4th Amendment, it does not prevent the government from looking, it simply requires excluding illegally obtained evidence at trial. I would give the government unchecked power to look, but would bar the evidence obtained. Such a policy would allow the government to fulfill its duty to protect from imminent danger without rewarding the breach of privacy.

DJ

April 23rd, 2010
10:54 am

hey COMMONSENSE – are you kidding?? “I don’t think people who take laptops and other electronic devices to public places should expect privacy”??? You really believe that? I have to wonder what your concept of privacy is (and I have to be thankful that you are not a judge).

So let me ask you – if you bring a briefcase “to a public place”, (or a purse, a shopping bag, your wallet, or any number of other closed/obscured/password protected, or otherwise “content hiding” containers), you have NO expectation of privacy for any of them? It would be ok with you if a cop randomly stopped you and demanded to see the contents of your purse or briefcase? Because you are out in public after all. Why don’t you just empty your pockets – obviously they don’t deserve any privacy protections either,.

Wow… just wow.

CD

April 23rd, 2010
12:22 pm

My understanding is you are not legal in the U.S. until you pass immigrations and customs checks. I can understand the position of the gov’t to search property before it enters the border. I think everyone would agree that it is good for the gov’t to try to get “bad” people and “bad” things out of the country. The issue of warrantless laptop searches has been concern for a few years now. The problem is where does the delineation of privacy fall. I think any rational person would agree that if a person is carrying an illegal weapon or plans for an act of terrorism the gov’t has the right and responsibility to locate those things. But searching a laptop that has personal or otherwise intimate information is another issue. What if the laptop just happened to have the secret formula for Coke?

I think any of these searches should require a warrant, at least for documentation and oversight purposes. An oversight committee or agency would see how many searches were conducted and what were the results. Someone mentioned that a warrant can be obtained easily. But then what kepts the customs personnel from fabricating a reason; the traveler would not have a chance to appeal the warrant. And I would suspect the judge is almost always going to side with law enforcement. And there is no way to engage your attorney beforehand.

There are software packages that will encrypt files, directories or “whole disks”. I believe “whole disk” encryption use, which encrypts all but some “bootstrap” data, will continue to increase. That would protect a laptop’s data if customs decided they wanted to copy your disk, but my understanding is the officer can seize your laptop altogether and the judge could hold a person in contempt for not making the login information available. I think the gov’t should at least be required to make restitution to the traveler for the laptop, etc. that they seize with no crime found. But we know that will not happen. It would curb searches, though.

CD

April 23rd, 2010
12:24 pm

correction:
you are not legal[ly] in the U.S. until you pass immigrations and customs checks.

BillRM

April 23rd, 2010
2:27 pm

I used truecrypt whole disk encryption and not all the government agents in all the whole is going to be looking at my computer without my permission.

And the 5 amendment grant great if not complete protection from a court order to force you to hand over a passphase.

When traveling oversea I do a complete backup of my netbook and I am more the willing on princple to loss a 400 dollars laptop.

Let the government spend a few millions dollars trying to read my private information.

Tiger Woods + Jesse James = SuperBAD meets SuperEVIL in "SUPERUGLY!"

April 23rd, 2010
8:01 pm

“Laptops open to warrantless government snooping
6:00 am April 23, 2010, by Bob Barr”

I don’t care what they do just as long as they leave my porn mistresses alone.

James Babb

April 24th, 2010
5:33 am

Funny that the guy who VOTED FOR the Patriot Act would now be concerned about civil liberties.

Not Going To Use My Usual Name

April 24th, 2010
8:04 am

James, I’m as liberal as they come, but I’ll say this about Barr. First, he voted for the Patriot Act only after they amended it with sunset clauses. Second, he has since stated publicly that he regrets his vote. Third, I think everyone was still a little 9/11 blind then and forgot that wise saying that those who give up liberty for security deserve neither (thanks, Ben Franklin).

Regarding this laptop mess… This isn’t right, and I will certainly take that wise advice to “pack accordingly” when I am flying into and out of the country. Agreed that if they were that certain they’d find child porn on the laptop, they ought to have had enough for a warrant.

Morrus

April 24th, 2010
8:33 am

Vote out the incumbents and start over

neo-Carlinist

April 24th, 2010
8:57 am

enough with the Ben Franklin quote. one cannot have security without surrending certain liberties. the very essence of any government or social organization requires us to “negotiate” with the herd. it’s give and take and it includes everything from marriage vows to the Constitution. if 50% of marriages fail, why do we expect 100% of our Constitutional vows to be honored. this case is so unbelievably obvious – both sides are operating illegally – both sides are in breach of contract. I htink it is safe to assume that Ben Franklin’s comment might have been different, as there is no way he could account for laptops, Customs agents, or digitally stored or encrypted child pornography.

dewstarpath

April 24th, 2010
9:10 am

Tiger Woods + Jesse James = SuperBAD meets SuperEVIL in “SUPERUGLY!”

April 23rd, 2010
8:01 pm

LOL!

The Tar and Feathers Party

April 24th, 2010
9:57 am

BillRm – Just for fun, after your deep encryption of the hard drive, put a few phrases in to get the guv goons all worked up, like “nuke” “tele aviv” “agent 33″ “implement plan on @@@@@@” and “OBL” that should ring their little pea like brains. The mall cops should have visions of glory dancing thru their little heads when they report up the barf chain.

DLink

April 24th, 2010
11:35 am

truecrypt.org… Fortunately? I don’t travel much… But, double encrypted multiple hidden partitions appear to be the way to travel with one’s personal information lately. Keeping ourselves safe from the people keeping us safe since 1776 or so.

DW

April 24th, 2010
1:32 pm

Where is the ACLU reguarding this matter?

Joe-number2

April 24th, 2010
1:49 pm

If I may play the devil’s advocate here, there is something I have never quite understood about child pornography. As completely disgusting as child porn is to me, how are the children harmed by the person at the viewing end? Who is the victim at the viewing end? How can this be a crime punishable by prison? After the photo is taken if it is viewed by thousands of people or maybe destroyed and never seen by anyone, what is the difference to the child? It would seem to me that the only wrong act is the taking of the photo and not the viewing of said photo by others. Remember that the person taking the photo could be an older child that is still under legal age or, even the subject themselves. We all know how tech savvy kids are today. I remember a few years ago in the Atlanta area a person was arrested and jailed for having child porn on their desktop found by a computer repair person. The person denied knowing that the porn was there. Well, I had to wonder if perhaps the computer repair tech could had been the culprit and not the computer owner. What a great way to hide their deeds. Using other peoples units while in for repair to get their kicks! I have a desktop that a purchased used and I have no idea what my be in some back file of the machine. Also, I have allowed many people to use my desktop when visiting my home and I don’t know what they may or may not have viewed! I would like too think that no one viewed porn but, how can I really be sure? And too repeat my earlier question, how is the child the photo harmed by the person simply looking at the photo? Why for heaven sakes, they don’t even know about it. What if the child is no longer a child? I am old enough to remember the day John Kennedy was shot. If a photo of me taken in my youth, in some state of undress, was viewed today, would this be a crime. Should the viewer be jailed and sent to prison for twenty five years. I can’t imagine how this would harm me in any way. My parents did take pictures of my sister and I in the bathtub nude. Was this a crime,and if so who is the victim? Just food for thought!

Louie

April 24th, 2010
6:06 pm

jackhammer………………………………

nelsonhoward

April 25th, 2010
8:12 am

The fourth amendment was written as a response to “the writ of assistance” which is a type of general search warrant used in the American Revolution.

The Supreme Court hasa ruled certain searches violate the Fourth Amendment even when a warrant was granted. Obviously, the Judge was using the archaic interpretaion of the fourth amendment. Searching a laptop computer for information is the same as searching the persons mind, ehich is an invasion of his body, in this case, his brain.

sbg

May 10th, 2010
1:16 pm

Simple solution: set the desktop wallpaper of your laptop to be a nude image of yourself. Then when asked for your password, you can simply refuse because of the nude image. After all, forcing you to allow the searchers to view a nude image of you should fall under the category of bodily privacy, right?

marisol

May 17th, 2010
5:32 pm

unete en el foro magnitiendum, conoce los temas u opina aqui cual modelo de laptop usas y porque? y en los demas temas si gustas