The 9th Circuit Court of Appeals handed down a long awaited ruling in U.S. v. Arnold over a week ago. To date there has been a disturbingly small amount of commentary on what will surely be a major civil liberties issue in the coming months.

Here's an attempt to do my part in facilitating discussion.

The facts of the case are as follows: Mr. Arnold was traveling from the Philippines and was selected, while waiting in line, for further questioning and screening by the U.S. Customs and Border Patrol. The man was ordered to turn on his laptop to demonstrate its functionality. Once the computer booted-up, the agent then inspected his desktop folders only to discover that they contained photographs from his trip. One photo depicted two nude women. The man was then turned over to Homeland Security and Immigration and Customs Enforcement for questioning. His laptop and flash drive were seized. After several hours of questioning, Mr. Arnold was released. A grand jury charged Arnold with knowingly transporting child pornography and attempting to have sex with minors in a foreign country among other things.

Arnold filed a motion to suppress the evidence gathered against him in Federal District Court in Los Angeles on grounds that the Border Patrol agents lacked reasonable suspicion to search his laptop. The District Court held that border security searches of computers require reasonable suspicion in order for such evidence to be admissible. On appeal, the 9th Circuit ruled that the Fourth Amendment does not require reasonable suspicion before searching laptops or other digital media. Quoting U.S. v. Flores-Montano, "Generally searches made at the border...are reasonable simply by virtue of the fact that they occur at the border."

The text of the opinion can be found here.

The crux of the current debate turns on whether border searches, generally, are reasonable by definition. This seems to be the Supreme Court's position in Flores-Montano and the view adopted by the 9th Circuit in Arnold. Given this position, there would be very little in the way of personal effects that Government could not search when Americans return to the United States.

My sense of the ruling is that while the law may be fairly clear as to the permissibility of searches conducted at the border absent reasonable suspicion, it remains unclear what framework and protocol are to be followed by the Border Patrol agents in determining who is searched and how the search of a laptop is conducted.

In my view, it would be unconscionable to grant government the authority to search laptops carte blanche. On the other hand, security concerns at America's points of entry require an extraordinary amount of vigilance on the part of our first-responders. Given the competing interests, I think a wise balance would be to require some standard slightly less than reasonable suspicion, as not to add needless impairments in the search process, but a standard slightly more ardent than the blank check to search computers that seems to exist at present.

The obvious counter to my middle course will be that if one has nothing to hide, then one has nothing to fear from a blanket right to search by the U.S. Customs and Border Patrol. Fair enough.

But a secondary concern stems from resource allocation. The primary mission of the agency is to keep "terrorists and their weapons out of the U.S." I remain unconvinced that going after child-pornography on a laptop is commensurate with stopping WMD from entering the country.

HT: Electronic Frontier Foundation