Case o' The Week: The First Plus the Fourth Plus the Fourth Plus the Ninth = 0, Arnold

It was a grim week for the Fourth Amendment. In Virginia v. Moore, __ S. Ct. __, 2008 WL 1805745 (Apr. 23, 2008), the Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Id. at *8, decision available here. In other words, under the Fourth Amendment a cop can search you for a petty offense that is merely cite-able, not arrest-able, under State law.

Not to be outdone, the Ninth issued an extraordinarily disappointing decision that takes chunks out of both the First and Fourth Amendments in one fell swoop. See United States v. Arnold __ F.3d __, 2008 WL 1776525 (9th Cir. April 21, 2008), decision available here. In Arnold, the Ninth gives carte blanche to Customs for laptop searches at international airports -- without even "reasonable suspicion." This brief decision on some tremendously important issues merits a much-closer look by an en banc panel.

Players: Great order by D.J. Dean Pregerson is reversed by Judges O’Scannlain and Milan Smith.

Facts: Michael Arnold arrived at LAX after spending three weeks in the Philippines. Id. at *1. After Customs discovered his laptop it ordered him to fire it up. Id. A Customs agent found a digital picture of two nude women (?!?), which merited a call to a supervisor and a more extensive search – ultimately producing child porn. Id.

Arnold was charged with transporting and possessing child porn. CD Cal. District Judge Dean Pregerson suppressed the search in a very thoughtful order. See United States v. Arnold, 454 F.Supp. 999 (C.D. Cal. 2006) (ord.) The government appealed.

Issue(s): “We must decided whether customs officers at Los Angeles International Airport may examine the electronic contents of a passenger’s laptop computer without reasonable suspicion.” Id. at *1.

Held: “[W]e are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” Id. at *4.

Of Note: This short opinion churns out many sweeping constitutional holdings with little or no analysis: it cries out for en banc review.

One Fourth Amendment holding is that there isn’t an expectation of privacy in a laptop akin to that in an office. Id. at *5. This assertion will be startling news for the hordes of Silicon Valley folks flying from the Ninth Circuit to the Pacific Rim. Turns out they don’t have an expectation of privacy for the location of Google’s new server farm, the I.P. of Intel’s latest chip design, or the share price for the Microsoft-Yahoo deal, if that data is on their laptop – though they do if the data is in their office. Who knew? As was true in Kelley and Forrester, in Arnold the jurisprudence of the Ninth is decades behind the realities of the most technologically-advanced Circuit.

Moreover, the decision doesn’t grapple with the very real First Amendment concerns at issue when Customs agents rummage through intensively private laptop data. Instead, it summarily adopts a particularly unpersuasive Fourth Circuit (?!?) decision, Ickes. Id. at *6. In the Ninth, the First deserves more than two paragraphs parroting the Fourth.

How to Use: A ND Cal AUSA once candidly admitted that she had Customs troll for single men coming back from Asia with laptops at SFO – these passengers earn an automatic referral to Secondary and an order to boot-up. Since the Ninth guts First and Fourth Amendment protections in Arnold, what say we try the Fifth Amendment? Defenders in districts with international airports should start generating stats and seeking discovery for an Equal Protection challenge on the methodology used by Customs for these laptop searches.

Also, what happens when a passenger is ordered to reveal a password to enable a laptop search? (Like a traveler who believes more in the protections of TrueCrypt (right), that of the Constitution). Isn’t the compelled disclosure of a password “testimonial” – and therefore a Miranda disclosure? At least one magistrate thinks so. See In re Boucher, 2007 WL 4246473 (D. Vt. 2007) (“Entering the Password is Testimonial. Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”)

For Further Reading: An informal survey by the Association of Corporate Travel Executives revealed that almost 90% of its members were not aware that Customs could search their laptops and confiscate them without reason. See New York Times article here. This is probably why the Association filed an amicus brief in support of Arnold, as did Stanford’s Electronic Frontier Foundation. See Times article here. Some heavy-duty amicus support, for a privacy interest not even acknowledged in the Arnold decision . . .


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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