L.A. federal judge finds officials must have reasonable suspicion under Fourth Amendment to search a laptop at U.S. Borders.

Amanda Bronstad

The National Law Journel

October 23, 2006

Government officials must have reasonable suspicion under the Fourth Amendment to search someone’s laptop at U.S. borders, according to a recent ruling in Los Angeles. The decision by U.S. District Judge Dean D. Pregerson of the Central District of California is the first within the area of the 9th U.S. Circuit Court of Appeals to address whether searching a person’s laptop is more than routine and therefore subject to the search and seizure protections of the Fourth Amendment. U.S. v. Arnold, No. 2:05-cr-00772 (C.D. Calif.). The Oct. 2 ruling expands upon a previous decision by the 9th Circuit that permitted the search of temporary cache files in a man’s laptop. U.S. v. Romm, 455 F. 3d 990 (9th Cir. 2006). The decision could lead to a potential circuit split, given a conflicting 4th Circuit ruling last year in a similar case. Under existing law, border officials must have a reasonable suspicion to conduct a nonroutine or invasive search, such as a body cavity search or X-rays. In most cases, that standard of proof is relatively low given the nation’s heightened security concerns at the borders. Previously, the only other case that addressed whether a laptop search is intrusive was U.S. v. Ickes, 393 F.3d 501 (4th Cir. 2005.) In that case, the 4th Circuit upheld a man’s conviction in ruling that a laptop search at the border did not violate his First Amendment right of expression. In July, the 9th Circuit upheld the conviction of a man with a prior criminal record in ruling that border authorities could search the temporary cache files in a laptop. But the circuit declined in Romm to address the issue of whether searching a laptop was routine or intrusive. The recent case involves Michael Timothy Arnold, a 43-year-old man with no previous criminal record who was indicted on child pornography charges after customs officers searched his laptop and other computer equipment at Los Angeles International Airport in July 2005. The government contended that the search was routine and therefore not subject to Fourth Amendment protections against unreasonable searches. “While not physically intrusive as in the case of a strip or body cavity search, the search of one’s private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person,” Pregerson wrote. Given that conclusion, the government failed to prove reasonable suspicion. Marilyn Bednarski of Pasadena, Calif.-based Kaye, McLane & Bednarski, who represents Arnold, hailed the ruling. “The search of a computer is different because it’s like looking into somebody’s mind,” she said. Assistant U.S. Attorney Elizabeth Carpenter said prosecutors are deliberating about whether to appeal.