[conspire] Court Ruling Allows US Border Patrol Agents to Seize Laptops

Eric De MUND ead-conspire at ixian.com
Sat Apr 26 00:42:00 PDT 2008

Rick, All,

Rick Moen <rick at linuxmafia.com>:
] Travelers beware: 9th Circuit Court of Appeals has ruled that US Cus-
] toms may seize and search international travelers' laptops and other
] electronic devices and _hold them for an indefinite period_ without
] any showing of probable cause or even of reasonable suspicion (because
] of the "border search doctrine").

Unfortunately, after reading the decision at the provided link:

    United States of America v. Michael Timothy Arnold

, specifically the heart of it:

    The Supreme Court has  stated that: The authority of the
    United  States   to  search  the   baggage  of  arriving
    international  travelers   is  based  on   its  inherent
    sovereign   authority   to   protect   its   territorial
    integrity. By  reason of that authority,  it is entitled
    to require  that whoever seeks entry  must establish the
    right to enter and to bring into the country whatever he
    may carry.
    Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979).

, even as a civil libertarian, I'm not sure I can say that suspicionless
searches at the border seem totally wrong-headed. I think I'd want to
retain the possibility of random searches. (Note that I'm weighing in
only on random searches' consistency with rather than the correctness of
"The authority of the United States to search the baggage of arriving
international travelers is based on its inherent sovereign authority to
protect its territorial integrity." Once inside the borders, the 4th
Amendment holds sway... thank goodness.)

The decision spent a bunch of time discussing exceptions to the above,
both of kind (e.g. alimentary canal searches, that impact human dignity)
and of nature (e.g. destructive searches of property), but found that
this case didn't fall into any of those exceptions. (Personally, though
I do find the idea of random cavity searches repulsive, this law that
weighs human dignity against protecting territorial integrity seems like
a kludge, a hack. I feel that if one views the need to protect territo-
rial integrity as supreme, all other bets are off. Thus it seems like a
poorly written law to me, a kind of crazy quilt. But not being a proper
student of law, maybe more laws are crazy quilts than not.)

Proceeding on, unfortunately I didn't see anything in the decision about
the authority of the United States to hold property for an indefinite
period. I can't see how that could possibly square with protecting ter-
ritorial integrity. Maybe it's because I don't understand the legal
meaning of "indefinite period". Or what property (any property? only
that which has been found to threaten territorial integrity?) may be
held so.

So there seem to be big open questions remaining. I can see a case like
this going all the way to the Supreme Court in the next couple of years.

Thanks for sending,
Two men came before Nasrudin when he was magistrate. The first man said,
"This man has bitten my ear -- I demand compensation." The second man
said, "He bit it himself." Nasrudin withdrew to his chambers, and spent
an hour trying to bite his own ear. He succeeded only in falling over
and bruising his forehead. Returning to the courtroom, Nasrudin pro-
nounced, "Examine the man whose ear was bitten. If his forehead is
bruised, he did it himself and the case is dismissed. If his forehead is
not bruised, the other man did it and must pay three silver pieces."

Eric De MUND
ead at ixian.com

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