Another disturbing laptop case from the 9th on how the First Amendment must hew to cops

In light of recent precedent, many lawyers that respect their clients’ confidences travel with laptops that do not contain sensitive information. This means: 1) no notes from interviews; 2) no medical records; and 3) no draft pleadings or other motions.

In fact, some people don’t even travel with laptops that contain hard drives, opting instead to access any data they need via a secure connection and store all programs on a write-only CD or similar medium. (You can build one with parts found on Ebay for under $80.  Ironically, many of the parts are ex-government surplus, often from the FBI.  But when they shut down, there is no record of anything that was done on that computer, or even that the computer was even turned on.)

In my mind, there is a legitimate fear that prying eyes will look at privileged (or confidential) information.

Unfortunately, we never get to litigate these issues.  Customs stops child-pr0n carrying pr0n people at their borders, and cooks up some rationale to search their laptops.  And, according to DotD, Judge O’Scannlain is more than happy to explain how laptops, at the border are more like “cars” than “closed containers.”  The case is U.S. v. Arnold, 06-50581 (9th Cir., April 21, 2008).

Suspect that there is some text below the fold?  If so, keep reading.

So, rather than argue for client secrecy, we have to watch O’Scannlain pervert the law to give the cops carte blanche to do whatever they want (and, even if he doesn’t do this, most government lawyers will tell them that this is what the decision means).

In doing so, O’Scannlain has diminished our ability to communicate and store private information in private.  And, he even goes out of his way to erode the First Amendment rights at stake (even though they could be avoided).   Of course since O’Scannlain probably never had to preserve the confidences of a client in the way that real lawyers do, he doesn’t care.  He writes:

Therefore, we are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.

(But see Note 1 regarding searches of incoming international mail.)

And, quoting the Fourth Circuit (which doesn’t care, either) he writes that there is no First Amendment interest in laptops because it would “contravene the weight of Supreme Court precedent refusing to subject government action to greater scrutiny with respect to the Fourth Amendment when an alleged First Amendment interest is also at stake.”  He seems to cite New York v. P. J. Video, Inc., 475 U.S. 868 (1986), for this proposition, but that case involved actual search warrants where affidavits could explain why they thought that contraband was “contained” on videotapes, and at least one judge could determine for himself whether merely coming back from the Philippines with some pictures constitutes probable cause (or even reasonable suspicion).  Moreover, unlike a border search, there is a procedure in place for quashing a warrant even after execution that can provide some First Amendment protection.    But O’Scannlain doesn’t really care about such details.  He just wants to put people in jail, and doesn't care if this means that customs agents get to read about your client's planned merger.

California Appellate Report comments here.

 

But, not all judges are obsessed with eroding our privacy and draining our souls. The New Jersey Supreme Court held that an actual subpoena is required to obtain ISP records.