[Infowarrior] - If Your Hard Drive Could Testify ...

[Richard Forno]

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If Your Hard Drive Could Testify ...
By ADAM LIPTAK
http://www.nytimes.com/2008/01/07/us/07bar.html?hp=&pagewanted=print

A couple of years ago, Michael T. Arnold landed at the Los Angeles
International Airport after a 20-hour flight from the Philippines. He had
his laptop with him, and a customs officer took a look at what was on his
hard drive. Clicking on folders called ³Kodak pictures² and ³Kodak
memories,² the officer found child pornography.

The search was not unusual: the government contends that it is perfectly
free to inspect every laptop that enters the country, whether or not there
is anything suspicious about the computer or its owner. Rummaging through a
computer¹s hard drive, the government says, is no different than looking
through a suitcase.

One federal appeals court has agreed, and a second seems ready to follow
suit.

There is one lonely voice on the other side. In 2006, Judge Dean D.
Pregerson of Federal District Court in Los Angeles suppressed the evidence
against Mr. Arnold.

³Electronic storage devices function as an extension of our own memory,²
Judge Pregerson wrote, in explaining why the government should not be
allowed to inspect them without cause. ³They are capable of storing our
thoughts, ranging from the most whimsical to the most profound.²

Computer hard drives can include, Judge Pregerson continued, diaries,
letters, medical information, financial records, trade secrets,
attorney-client materials and ‹ the clincher, of course ‹ information about
reporters¹ ³confidential sources and story leads.²

But Judge Pregerson¹s decision seems to be headed for reversal. The three
judges who heard the arguments in October in the appeal of his decision
seemed persuaded that a computer is just a container and deserves no special
protection from searches at the border. The same information in hard-copy
form, their questions suggested, would doubtless be subject to search.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va.,
took that position in a 2005 decision. It upheld the conviction of John W.
Ickes Jr., who crossed the Canadian border with a computer containing child
pornography. A customs agent¹s suspicions were raised, the court¹s decision
said, ³after discovering a video camera containing a tape of a tennis match
which focused excessively on a young ball boy.²

It is true that the government should have great leeway in searching
physical objects at the border. But the law requires a little more ‹ a
³reasonable suspicion² ‹ when the search is especially invasive, as when the
human body is involved.

Searching a computer, said Jennifer M. Chacón, a law professor at the
University of California, Davis, ³is fairly intrusive.² Like searches of the
body, she said, such ³an invasive search should require reasonable
suspicion.²

An interesting supporting brief filed in the Arnold case by the Association
of Corporate Travel Executives and the Electronic Frontier Foundation said
there have to be some limits on the government¹s ability to acquire
information.

³Under the government¹s reasoning,² the brief said, ³border authorities
could systematically collect all of the information contained on every
laptop computer, BlackBerry and other electronic device carried across our
national borders by every traveler, American or foreign.² That is, the brief
said, ³simply electronic surveillance after the fact.²

The government went even further in the case of Sebastien Boucher, a
Canadian who lives in New Hampshire. Mr. Boucher crossed the Canadian border
by car about a year ago, and a customs agent noticed a laptop in the back
seat.

Asked whether he had child pornography on his laptop, Mr. Boucher said he
was not sure. He said he downloaded a lot of pornography but deleted child
pornography when he found it.

Some of the files on Mr. Boucher¹s computer were encrypted using a program
called Pretty Good Privacy, and Mr. Boucher helped the agent look at them,
apparently by entering an encryption code. The agent said he saw lots of
revolting pornography involving children.

The government seized the laptop. But when it tried to open the encrypted
files again, it could not. A grand jury instructed Mr. Boucher to provide
the password.

But a federal magistrate judge quashed that subpoena in November, saying
that requiring Mr. Boucher to provide it would violate his Fifth Amendment
right against self-incrimination. Last week, the government appealed.

The magistrate judge, Jerome J. Niedermeier of Federal District Court in
Burlington, Vt., used an analogy from Supreme Court precedent. It is one
thing to require a defendant to surrender a key to a safe and another to
make him reveal its combination.

The government can make you provide samples of your blood, handwriting and
the sound of your voice. It can make you put on a shirt or stand in a
lineup. But it cannot make you testify about facts or beliefs that may
incriminate you, Judge Niedermeier said.

³The core value of the Fifth Amendment is that you can¹t be made to speak in
ways that indicate your guilt,² Michael Froomkin, a law professor at the
University of Miami, wrote about the Boucher case on his Discourse.net blog.

But Orin S. Kerr, a law professor at the George Washington University, said
Judge Niedermeier had probably gotten it wrong. ³In a normal case,²
Professor Kerr said in an interview, ³there would be a privilege.² But given
what Mr. Boucher had already done at the border, he said, making him provide
the password again would probably not violate the Fifth Amendment.

There are all sorts of lessons in these cases. One is that the border seems
be a privacy-free zone. A second is that encryption programs work. A third
is that you should keep your password to yourself. And the most important,
as my wife keeps telling me, is that you should leave your laptop at home.