How about your laptop testifying against you in court? That, says the New York Times, appears to be the way the legal precedents are heading.
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 “Kodak pictures” and “Kodak memories,” 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 computer’s 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.
“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”
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 reporters’ “confidential sources and story leads.”
But Judge Pregerson’s decision seems to be headed for reversal.
The case in question is, of course, about as distasteful as it can be. Child porn is utterly depraved. But the precedents here could be problematic for many people.
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 government’s ability to acquire information.
“Under the government’s reasoning,” the brief said, “border 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.” That is, the brief said, “simply electronic surveillance after the fact.”
Another case – unfortunately also involving child porn – does give a hint how constitutional protections can help out. Encrypting one's files – and refusing to give the decryption key to an official – may invoke the Fifth Amendment against self-incrimination:
“The core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt,” 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. “In a normal case,” Professor Kerr said in an interview, “there would be a privilege.” 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 a number of encryption programs out there, both freeware and paid software. One freeware program that CNET rates as a five-star is TrueCrypt. I have not tried it, can't vouch for its ease of use and anyone who does try it should read all the cautions carefully. I have no idea where these legal precedents are heading. It might be a good time for people to start paying attention, though. One thing that troubles me about this is that a warrant would be required to search your computer in your home, but customs is arguing that it is fair game if you carry it with you. I am not comfortable with that at all. And out of a sheer sense of contrariness, I plan on encrypting even my grocery lists.