Legal Commentary

Ancient chinese curse: may you come to the attention of the authorities

By Ernest Svenson

Michael Arnold came back to Los Angeles in the Summer of 2005 after spending three weeks visiting some friends in the Philippines. He had his laptop with him, and that turned out to be a problem. Customs agents selected him for 'secondary questioning' and asked him to fire up his laptop. They proceeded to look through it and found a folder labelled 'Kodak memories.' In the folder was a picture of two nude women.

Not surprisingly, this attracted the attention of the border folks but not so much from an 'artistic sense' as from a 'deeply suspicious authoritarian sense.' They searched more and found what they claimed were pictures that constituted 'child pornography.' Mr. Arnold was charged by a federal grand jury with knowingly transporting child pornography.

Welcome back to the United States.

His pro bono lawyer filed a motion to suppress the 'evidence' because it was found during a warrantless and suspicionless search. The district court granted the motion to suppress, but the Ninth Circuit reversed and held that border agents don't need a reason to search laptops of people entering the country. Needless to say, this decision is sending some shock waves through the blogosphere.

Why? Well for starters no one trusts the government employees who work as border agents. Airport security has become a joke as elderly people in wheelchairs with artificial knees are assumed to be devious terrorists and kindly grandmothers are having their perfume bottles confiscated. When was the last time the TSA captured a real live terrorist? It must be boring to be a customs agent.

Fortunately there is a whole new area of crime prevention: child pornography. And, while most pornography is found on the Internet, border agents are now apparently focusing on traveling laptops. Maybe if Mr. Arnold hadn't had that picture of the two nude women in his Kodak memories folder the agents wouldn't have kept poking around his computer and found what (they claim) was child pornography. What if his attorney kept copies of the supposedly offending pictures on his laptop (as part of his case preparation) and then travelled out of the country? Upon his return he might face the prospect of being unnecessarily hassled by bored government employees. Maybe he'd wind up having to hire his own attorney. Welcome to the "war on child pornography."

How can travelers avoid having their vacation life ruined by authorities with unfettered discretion to probe their digital data?

The Electronic Frontier Foundation has some good tips. The first recommendation most people offer (including the EFF) is to encrypt your hard drive. Another one is to send any possible 'offending material' back via the Internet (encrypted, of course). Seems like traveling has become more trouble than its worth.

So many questions arise from this story. First, why is the government even wasting time with this kind of thing? Child pornography is not as bad as many other things that are happening in our world. Many people are terribly offended by it of course, and they argue that pornography leads to abuse etc. So what? Lots of things lead to other things. If we spent all our time chasing permutations and ramifications we wouldn't have any time to impulsively buy things, or listen to talk radio.

The main question for those who might be packing risqué photos on their laptops is this: how can I avoid major jail time? I don't have a great answer except to say that that encrypting your hard drive shouldn't be your first line of defense. Keeping a low profile is key. If the authorities ask to see your computer and find out it's encrypted you will officially no longer have a 'low profile.'

More thoughts from the EFF here.

Full post as published by Ernie the Attorney on August 19, 2008 (boomark / email).