Mar 2, 2011

Are Digital Inspections Constitutional?

Whether a search of your computer is legal depends, in large part, on where the search takes place.  If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all.  Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools.  Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY.  Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison. 

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US.  Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer.  Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant.  Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images.  Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive. 

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion. 

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal.  A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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