No.

06-50581
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ) (NO. CR 05-772-DDP)

)
Plaintiff-Appellant, )
)
v. )
)
MICHAEL TIMOTHY ARNOLD )
)
Defendant-Appellee. )
_______________________________)

BRIEF FOR AMICI CURIAE

ASSOCIATION OF CORPORATE TRAVEL EXECUTIVES
AND ELECTRONIC FRONTIER FOUNDATION
IN SUPPORT OF DEFENDANT-APPELLEE

Appeal from The United States District Court

For the Central District of California

RANDALL BRATER
Arent Fox LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036

Of Counsel:

JOHN M. GURLEY
TIMOTHY P. KANE
Arent Fox LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
202-857-6000
Attorneys for Amici Curiae
TABLE OF CONTENTS
Page

INTEREST OF AMICI CURIAE 1

SUMMARY OF ARGUMENT 3

ARGUMENT 4

A. THE SEARCHES 6

B. SUSPICIONLESS BORDER SEARCHES

OF LAPTOP COMPUTERS RAISE
SPECIAL CONSTITUTIONAL CONCERNS 9

CONCLUSION 29

ii
TABLE OF AUTHORITIES
Page(s)

FEDERAL CASES

ACLU v. National Sec. Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006) 6

Alexander v. United States, 362 F.2d 379 (9th Cir. 1966) 19

Andresen v. Maryland, 427 U.S. 463 (1976) 10, 27

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) 25

Berger v. New York, 388 U.S. 41 (1967) 17-18

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) 22

Camara v. Municipal Court, 387 U.S. 523 (1967) 17

Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931) 18

Heidy v. U.S. Customs Service, 681 F.Supp. 1445 (C.D. Cal. 1988) 23, 28-29

In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) 5

Katz v. United States, 389 U.S. 347 (1967) 23-24, 27

Kyllo v. United States, 533 U.S. 27 (2001) 13-14

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) 22

Marcus v. Search Warrant, 367 U.S. 717 (1961) 11, 26

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) 25

Payton v. New York, 445 U.S. 573 (1980) 17

Reno v. ACLU, 521 U.S. 844 (1997) 24

Roaden v. Kentucky, 413 U.S. 496 (1973) 22

iii
Stanford v. Texas, 379 U.S. 476 (1965) 11, 22

Steagald v. United States, 451 U.S. 204 (1981) 17

Thornhill v. Alabama, 310 U.S. 88 (1940) 26

United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006) 12

United States v. Alfonso, 759 F.2d 728 (9th Cir. 1985) 22

United States v. Arnold, 454 F. Supp. 2d 999 (C.D. Cal. 2006). passim

United States v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998) 12

United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987) 6

United States v. Flores-Montano, 541 U.S. at 149 (2004) 14, 28

United States v. Furukawa, No. 06-145, 2006 WL 3330726 (D. Minn. 2006) 19

Unites States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc) 12

United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) 20

United States v. Meija, 720 F.2d 1378 (5th Cir. 1983) 14

United States v. Montoya de Hernandez, 473 U.S. 531 (1985) 14

United States v. Park, No. CR-05-375, 2007 WL 1521573 (C.D.Cal. 2007) 19

United States v. Price, 472 F.2d 573 (9th Cir. 1973) 11

United States v. Ramsey, 431 U.S. 606 (1977) 10-11, 18, 28

United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996) 12

United States v. Romm, 455 F.3d 990 (9th Cir. 2006) 16, 19

United States v. Schoor, 597 F.2d 1303 (9th Cir. 1979) 21-22

iv
United States v. Soto-Teran, 44 F.Supp.2d 185 (E.D.N.Y. 1996) 14

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) 4-5

United States v. U.S. Dist. Ct., 407 U.S. 297 (1972) 23-24, 26-27

Wolf v. Colorado, 338 U.S. 25 (1949) 17

MISCELLANEOUS

Ty Howard, Don’t Cache out Your Case: Prosecuting Child Pornography

Possession Laws Based on Images Located in Temporary Internet Files,
19 Berkeley Tech. L.J. 1227, 1233–34 (2004) 16

Orin Kerr, Searches and Seizures in a Digital World,

119 Harv. L. Rev. 531, 569 (2005) passim

S. Rep. No. 99-541, at 5 (1996) 13

Joe Sharkey, At U.S. Borders, Laptops Have No Right to Privacy,

N.Y. TIMES, October 24, 2006 7-8

Joe Sharkey, To Do List: Rename Laptop Files

‘Grandma’s Favorite Recipes’, N.Y. TIMES, November 7, 2006 7-8

v
 No. 06-50581
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ) (NO. CR 05-772-DDP)

)
Plaintiff-Appellant, )
)
v. )
)
MICHAEL TIMOTHY ARNOLD )
)
Defendant-Appellee. )
_______________________________)

Brief for Amici Curiae

I. INTEREST OF THE AMICI CURIAE

Amici are the Association of Corporate Travel Executives (“ACTE”) and the

Electronic Frontier Foundation (“EFF”).

ACTE is a not-for-profit organization dedicated to protecting the interests of

business travelers worldwide through research, lobbying, and education. Founded

in 1988, ACTE has approximately 2,500 members, including American citizens

and citizens of foreign countries. ACTE’s headquarters are located in Alexandria,

Virginia.

EFF is a nonprofit organization that works to protect civil liberties, privacy,

and consumer rights in the digital age. Founded in 1990, EFF has more than
13,000 members throughout the United States. EFF’s headquarters are located in

San Francisco, California.

Both amici have a keen interest in the privacy rights of travelers entering and

leaving the United States. In the case of ACTE, this interest derives from reports

by some ACTE members that American border officials randomly searched and

seized their laptop computers. ACTE’s individual members have an obvious

interest in protecting confidential information contained on their laptop computers.

Further, ACTE and its members have an interest in the economic health and well-

being of the international travel industry and therefore contest government policies

that unnecessarily chill international travel.

In the case of EFF, their interest arises from their ongoing efforts to

encourage and challenge government and industry to recognize the threats that new

technologies pose to civil liberties and personal privacy. EFF has special

familiarity with and interest in constitutional privacy issues that arise with new

technologies.

Both amici believe that suspicionless searches and seizures of laptop

computers at the border threaten to render meaningless the Fourth Amendment’s

prohibition against unreasonable searches and seizures. Amici also believe that the

instant case will be crucial in protecting personal privacy, proprietary business

information, privileged legal communications, and the like by delineating an

2
important limit to the government’s authority to collect electronic information

about its citizens.

II. SUMMARY OF ARGUMENT

In this appeal, the executive branch of our government seeks blanket

authority to read, seize, and store all of the information retrievable from the laptop

computers and other electronic devices carried by travelers who cross our national

borders. In seeking this authority from the Court, the government bases its appeal

on the bright-line distinction it mistakenly perceives between the government’s

limited authority to search an international traveler’s body and its supposedly

limitless authority to search and seize anything outside the body. See Gov’t’s

Opening Br. 45-46. The government’s argument is untenable, and the implications

of the government’s argument are great.

Amici respectfully argue that the government’s position – and current

practice – subjects innocent travelers to unconstitutionally invasive searches of

their laptop computers and other electronic devices. Indeed, the government

currently conducts these searches at random, without reasonable suspicion, and

without regard for the constitutionally protected interests to which travelers are

entitled. As the District Court correctly recognized, laptop computers are quite

different from gas tanks, suitcases, and other closed containers, because laptops

routinely contain vast amounts of the most personal information about people’s

3
lives – not to mention privileged legal communications, reporters’ notes from

confidential sources, trade secrets, and other privileged and valuable information.

United States v. Arnold, 454 F. Supp. 2d 999, 1003-04 (C.D. Cal. 2006).

For the reasons discussed in this brief, the unique nature of electronic

information stored on laptop computers requires courts to recognize an appropriate

standard that reasonably protects the privacy of our citizens. Further, the

particularly invasive and unconstrained nature of these searches, as described in

more detail below, invites the government to abuse its power by making an end run

around the Fourth Amendment. This Court should recognize that reasonable

suspicion of criminal activity is a necessary prerequisite before border agents

search or seize the electronic contents of laptop computers. Amici respectfully

request that the Court affirm the District Court’s ruling.

III. ARGUMENT

The government’s appeal contends that suspicionless border searches of the

contents of laptop computers do not implicate the Fourth Amendment. In essence,

the government argues that when an American citizen like Mr. Arnold returns

home from abroad, he has the same Fourth Amendment rights in his transported

property as a foreign citizen has in his property in a foreign land; in other words,

he has no Fourth Amendment rights whatsoever. See, e.g., U.S. v. Verdugo-

Urquidez, 494 U.S. 259, 274-75 (1990) (Fourth Amendment does not apply to

4
foreign citizens in foreign countries; see also In re Guantanamo Detainee Cases,

355 F. Supp. 2d 443, 458-59 (D.D.C. 2005). The government appeal invites the

Court to extend this constitutional vacuum to our borders so that Customs and

Border (“CBP”) agents may continue to randomly search, seize, and copy the

electronic information stored on travelers’ laptop computers.

The government claims that, unless border officials are given this unchecked

power, the courts will “seriously undermine the nation’s vital interest in protecting

its borders” by “effectively rendering computer devices the smuggler’s container

of choice for electronic contraband.” (Gov’t’s Opening Br. 16.) The government’s

assertion is ridiculous. It is well-established that the Fourth Amendment protects

communications between the United States and foreign countries. See, e.g., United

States v. Cavanagh, 807 F.2d 787, 789-91 (9th Cir. 1987) (finding that FISA’s

warrant requirements for monitoring communications between Americans and

foreign agents satisfies the Fourth Amendment). Where the executive branch

surveils such communications without cause and without complying with FISA,

the government violates the Fourth Amendment. See ACLU v. National Sec.

Agency, 438 F. Supp. 2d 754, 773-74 (E.D. Mich. 2006).

Thus, the smuggler’s so-called “container of choice” for electronic

contraband is actually the internet itself. A foreign “smuggler” may simply email

information into the United States to avoid a suspicionless search or, easier yet,

5
may simply post the information on the internet. The District Court’s ruling

therefore does not undermine our “nation’s vital interest in protecting its borders”

any more than FISA or the internet.

In the final analysis, the only question before the Court is whether the

government, without any particularized suspicion and without any court oversight,

can review the information stored on laptop computers carried across the border by

international travelers. Amici believe that such searches are patently unreasonable

and thus prohibited by the Fourth Amendment. Amici respectfully request that the

Court deny the government’s appeal.

A. The Searches1

Travelers who arrive in the United States from abroad know that they may

be searched by border authorities. Customs and Border Protection (“CBP”) agents

regularly inspect travelers’ shoes and luggage, ask routine questions, and review

legal documentation. Travelers likewise have become accustomed to removing

their laptop computers from carry-on bags so that agents may x-ray the computer

or otherwise inspect it to ensure that it does not contain explosives or drugs.

1
In describing these searches, amici rely on media stories, reports by their own
members, and the record in the instant case. Further, the government’s appeal
certainly argues that searches like those described herein are constitutional under
the Fourth Amendment. Thus, regardless of how widespread and well-documented
these suspicionless searches are, this description is relevant to the Court’s analysis.
Indeed, amici believe that Mr. Arnold’s case offers a rare glimpse inside our border
officials’ systematic but unchecked policy of randomly searching, seizing, and
copying the contents of traveler’s laptop computers.

6
 A border search, however, takes on an entirely different character when a

CBP agent turns on a traveler’s computer, opens their electronic files, and begins

reviewing the contents. What is your biggest secret? Do you have any

embarrassing health conditions? Have you ever had a family crisis? Often, the

answers to questions like these are contained on laptop computers.

In a typical laptop search, a border agent will turn on (or instruct the traveler

to turn on) the computer and then begin reviewing files on the computer. See Joe

Sharkey, At U.S. Borders, Laptops Have No Right to Privacy, N.Y. TIMES, October

24, 2006, at C8 (“Sharkey I”); Joe Sharkey, To Do List: Rename Laptop Files

‘Grandma’s Favorite Recipes’, N.Y. TIMES, November 7, 2006, at C6 (“Sharkey

II”); see also Arnold, 454 F. Supp. 2d at 1001. If the agents see something of

interest – or even if they see nothing at all of interest – the agents may confiscate

the computer and tell him or her that the computer will be returned by mail when

the agents are done with it. See Sharkey II; Affidavit of John M. Gurley, June 18,

2007, ¶ 3, attached as Exhibit 1; Arnold, F.Supp.2d at 1001.

After border authorities confiscate a computer, they may copy its contents

by creating a “mirror image” of the hard drive. See Gurley Aff. ¶ 4. Through this

method, they obtain all of the contents of the computer’s memory, including

deleted files, files implanted unknowingly on the computer via the internet, and

password-protected files. Amici currently do not know whether or how the copied

7
contents of seized computers are reviewed, stored, and shared with other

government agencies.2 But see Gurley Aff. ¶ 4 (explaining that in at least one

instance border agents provided to the U.S. Department of Justice a mirror image

of the hard drive of a traveler’s computer, where the traveler was not suspected of

criminal activity). Within a week or so, border agents mail the computer back.

See id. In some instances, however, the computers are not returned, without

explanation. See Sharkey I.3

Although laptop searches by border agents have raised increasing concerns

among businesses, individual travelers, and the media during the last year, they

still come as a surprise to most travelers. See, e.g., Sharkey I. Indeed, in an

October 2006 survey of business travel managers, ACTE found that only six

percent of the managers knew that border agents randomly search, seize, and copy

the contents travelers’ computers, and only one percent had received reports from

2
In November 2006, Arent Fox LLP submitted a FOIA request to the Department
of Homeland Security (“DHS”) seeking information on these and other issues
pertinent to this amicus brief. In February 2007, DHS provided a “partial”
response to the FOIA request that contained nothing more than general DHS
training materials for law enforcement officers. DHS has not provided any
subsequent information pursuant to the FOIA request.
3
One possible explanation is that CBP simply “loses” some seized computers.
Indeed, a recent report by the Office of the Inspector General found that CBP loses
its own laptop computers and “has not established effective inventory management
for its laptop computers.” Improved Administration Can Enhance U.S. Customs
and Border Protection Laptop Computer Security, OIG-07-16 at 12, 15 (December
2006).

8
travelers that their laptops had in fact been seized by U.S. border officials. See

ACTE Survey Results, attached as Exhibit 2. The survey results reflect that even

very experienced business travelers are completely surprised to learn that the U.S.

government conducts these searches and seizures randomly. See id.

Further, these searches give businesses and individuals a reason not to travel

across U.S. borders to conduct business, simply to protect their privacy. Some

businesses will likely expend significant resources protecting confidential

information from border searches, for instance by purchasing “travel computers”

that do not contain any saved information. Of course, companies also incur direct

costs when a border agent seizes a laptop computer during a business trip.

B. Border searches of laptop computers raise special constitutional concerns.

People have a robust and reasonable expectation in the privacy of the

contents of their laptop computers. The information contained on a citizen’s laptop

computers is unique in its private nature, in its nearly limitless volume, in its

pervasive role in our society, and in its capacity to be quickly copied, saved, and

searched. The questions raised in this appeal thus are not amenable to facile

analogies with file cabinets and gas tanks. As the Fourth Amendment ensures, the

American people have a right to be subjected to only reasonable searches and

seizures.

9
 In balancing this right against the government’s interest in protecting our

borders, the Court should recognize not only the unique nature of these searches

but also the wide ranging implications of the government’s arguments. Indeed,

under the government’s reasoning, 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. The government could then store and search all of this information

without justification and without oversight from the courts. Even in such an

extreme situation, the Fourth Amendment, according to the government’s logic,

simply does not apply. If accepted, the government’s argument will establish an

end run around the Constitution’s prohibition against unreasonable searches and

seizures.

The Fourth Amendment requirement of reasonableness embodies two

central principles that must be observed, even in border searches. First, the scope

of searches must be minimized because “[g]eneral warrants . . . are prohibited by

the Fourth Amendment.” Andresen v. Maryland, 427 U.S. 463, 480 (1976). The

concern is “not that of intrusion per se, but of a general, exploratory rummaging in

a person's belongings.” Id. (internal quotation marks and citation omitted); see

United States v. Ramsey, 431 U.S. 606, 624 (1977) (permitting officers to open

bulky envelopes to search for contraband, but noting that if the envelopes had

10
contained correspondence, a warrant would have been needed to read the

correspondence); id. at 615-616 (limiting scope of search to confirming or denying

suspicions about contraband); United States v. Price, 472 F.2d 573, 575 (9th Cir.

1973) (customs officials were “not entitled, on the basis of appellant’s nervousness

alone, to keep looking until they found something”).

Second, there must be meaningful oversight of government searches, even

when no warrant is required. The Supreme Court has relied heavily on statutory

and regulatory controls on official discretion in evaluating border searches. See,

e.g., Ramsey, 431 U.S. at 611 (noting statutory authorization); id. at 612 n.8 (“the

opening of mail is limited by a ‘reasonable cause’ requirement, while the reading

of letters is totally interdicted by regulation”). Here, however, the government’s

appeal implicitly seeks authorization for general warrantless searches that will not

be subject to the oversight of the courts. Moreover, the Fourth Amendment’s

requirements must be observed with “scrupulous exactitude” when searches or

seizures intrude upon First Amendment freedoms, as they undoubtedly do here.

Stanford v. Texas, 379 U.S. 476, 485 (1965); Marcus v. Search Warrant, 367 U.S.

717 (1961).

1. People have a reasonable expectation of privacy in the information stored

on their laptop computers.

A personal computer is among a person’s most private belongings. Laptop

computers are virtual extensions of the mind, used to record and share our

11
thoughts, feelings, and activities; indeed, “they are postal services, playgrounds,

jukeboxes, dating services, movie theaters, daily planners, shopping malls,

personal secretaries, virtual diaries, and more.” Orin Kerr, Searches and Seizures

in a Digital World, 119 Harv. L. Rev. 531, 569 (2005) (“Kerr”). As a result, our

laptop computers contain as much information about us as our homes contain –

perhaps more.

People naturally presume the privacy of the contents of their laptop

computers, iPods, and cellular telephones. Americans “undoubtedly have a high

expectation of privacy in the files stored on their personal computers.” United

States v. Adjani, 452 F.3d 1140, 1146 (9th Cir. 2006). Thus, "for most people,

their computers are their most private spaces." Unites States v. Gourde, 440 F.3d

1065, 1077 (9th Cir. 2006) (en banc) (Kleinfeld, J., dissenting); United States v.

Barth, 26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable

expectation of privacy in files stored on hard drive of personal computer left with

computer technician for limited purpose of repairing computer); United States v.

Reyes, 922 F. Supp. 818, 832-33 (S.D.N.Y. 1996) (finding reasonable expectation

of privacy in data stored in a pager).

People use computers to think, to learn, to communicate, and to associate

with others; in so doing, computers record what we think about, what we learn,

what we say to others, and whom we associate with. To treat border searches of

12
personal computers as merely “routine” would permit the government to arbitrarily

rummage through a long history of a person’s thoughts, feelings, and activities.

Accordingly, border searches of laptop computers raise fundamental constitutional

questions that cannot be facilely dismissed as “routine,” or as affecting only

“property,” or as relevant to only the government’s security concerns.

2. Searches of personal electronic information devices like laptop computers

are particularly invasive of personal privacy.

Congress has noted that “the law must advance with the technology to

ensure the continued vitality of the fourth amendment. Privacy cannot be left to

depend solely on physical protection, or it will gradually erode as technology

advances.” S. Rep. No. 99-541, at 5 (1996). Thus, “[t]he question we confront

today is what limits there are upon [the] power of technology to shrink the realm of

guaranteed privacy.” Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (requiring

a warrant based on probable cause for the government to search a home using

sophisticated thermal imaging technology). That same question is posed here. The

border search doctrine has long authorized extensive, highly discretionary searches

of physical objects carried by travelers. In the past, however, these searches did

not invade every domain of an individual’s life; to the contrary, the searches only

affected physical items that a traveler chose to carry across the border. For

example, a traveler may choose to carry extensive paper files across the border, but

such situations are certainly rare; with computers, the situation is common, not

13
exceptional. Technology now puts massive amounts of personal and proprietary

communications and information within border officials’ grasp; “computer

searches involve entire virtual worlds of information.” Kerr, at 534. Individuals,

however, value the privacy of their computers even more precisely because they

embody so much of their lives.

These unique circumstances require that this Court evaluate the privacy

interests inherent in laptop border searches with extreme care. Kyllo, 533 U.S. at

36 (“the rule we adopt must take account of more sophisticated systems that are

already in use or in development.”). A routine border search is more limited in

scope than a non-routine border search; thus, the intrusiveness of a search is a

significant factor in distinguishing routine from non-routine border searches.

United States v. Flores-Montano, 541 U.S. at 149, 152, 154-55 (2004); United

States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985); id. at 541 n.4

(declining to decide level of suspicion for “nonroutine border searches such as

strip, body cavity, or involuntary x-ray searches”); United States v. Meija, 720 F.2d

1378, 1382 (5th Cir. 1983) (“intrusion is keyed to embarrassment, indignity, and

invasion of privacy”).

3. The volume of information stored on computers means that the privacy

invasion of a laptop border search is enormous.

With today’s technology, a government search of a laptop computer can

already reveal voluminous personal information about the owner. That the

14
government can and does keep such information, makes the problem even more

acute. Further, the invasiveness of these searches will only grow as technology

advances. Professor Kerr has rightly observed:

As our computers perform more functions and preserve more

data, we may eventually approach a world in which a
considerable chunk of our lives is recorded and stored in
perpetuity in our computers. These details may end up stored
inside our machines in a way that can be reconstructed later by
a forensic analyst with remarkable accuracy.

Kerr, at 569. As a result, computer searches are by their nature uniquely invasive.

See id. In essence, a search of the contents of a laptop computer is simply

electronic surveillance after the fact.

As the District Court here correctly observed:

People keep all types of personal information on computers,

including diaries, personal letters, medical information, photos
and financial records. Attorneys' computers may contain
confidential client information. Reporters' computers may
contain information about confidential sources or story leads.
Inventors' and corporate executives' computers may contain
trade secrets.

Arnold, 454 F. Supp. 2d at 1003-04; see also United States v. Soto-Teran, 44

F.Supp.2d 185, 191 (E.D.N.Y. 1996) (in the border search context, “a close

reading of the contents of documents could intrude on a person’s privacy since

such documents could deal with very personal matters, such as a diary or desk

calendar”). Thus, while the nature of the information on personal computers alone

poses serious risks to privacy interests, the risks are magnified by the fact that “[a]

15
laptop and its storage devices have the potential to contain vast amounts of

information.” Arnold, 454 F.Supp.2d at 1003. Only an extensive search of a

person’s home could be expected to provide the government with as much private

information about a person as a search of their laptop computer could provide.

4. Personal computers often contain information that the individual does not
know about, or has even sought to erase.

As discussed above, laptop computers contain a staggering amount of

information about their owners but “[c]omputers are also remarkable for storing a

tremendous amount of information that most users do not know about and cannot

control.” Kerr, at 542. In essence, a traveler can be searched for material that she

did not know she possessed, or even deliberately sought not to bring across the

border.

For example, files that a user has deleted normally remain on one’s

computer “because marking a file as ‘deleted’ normally does not actually delete the

file.” Id.; see also United States v. Romm, 455 F.3d 990 (9th Cir. 2006). In

addition, internet browsers often retain not only the internet addresses of sites

visited, but actual information, both text and images, accessed during the visit,

even when the user had no intent to copy such information. See Ty Howard, Don’t

Cache out Your Case: Prosecuting Child Pornography Possession Laws Based on

Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1233–

34 (2004). Thus, when a border agent searches the contents of a traveler’s

16
computer, he can find extremely detailed information not only about the computer

owner, but also about anyone else who has used the computer, and anyone with

whom the owner communicated through the computer.4

5. Laptop computer searches are indistinguishable from “general searches.”

The Fourth Amendment’s “basic purpose . . . is to safeguard the privacy and

security of individuals against arbitrary invasions by governmental officials.”

Camara v. Municipal Court, 387 U.S. 523, 528 (1967); Wolf v. Colorado, 338 U.S.

25, 27 (1949) (“The security of one’s privacy against arbitrary intrusions by the

police – which is at the core of the Fourth Amendment – is basic to a free

society.”). In particular, the Fourth Amendment was directed at searches of the

kind that the English Crown had practiced through “general warrants” and “writs

of assistance.” Payton v. New York, 445 U.S. 573, 583 (1980). The Founders

objected to these practices because “they provided no judicial check on the

determination of the executing officials that the evidence available justified an

intrusion into any particular home.” Steagald v. United States, 451 U.S. 204, 220

(1981) (emphasis added).

In Berger v. New York, 388 U.S. 41 (1967), the case that launched the

modern constitutional treatment of communications surveillance, the Supreme

Court condemned government eavesdropping precisely because it authorized

4
This issue is not theoretical. In businesses and even law firms, “common”
laptops are used during travel by employees who normally use desktop computers.

17
“indiscriminate use of electronic devices” and “actually permits general searches

by electronic devices.” Id. at 58. “By its very nature,” eavesdropping “involves an

intrusion on privacy that is broad in scope.” Id. at 56.

A suspicionless unrestricted search of a laptop computer is simply electronic

eavesdropping after the fact. As such, it is distinguishable from the forbidden

general searches of Colonial times only by the technologies involved. Indeed,

when the Supreme Court noted that “a border search might be deemed

‘unreasonable’ because of the particularly offensive manner in which it is carried

out,” Ramsey, 431 U.S. at 618 n.13, it cited a case famous for its condemnation of

general searches. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357

(1931) (the Framers “emphasize[d] the purpose to protect against all general

searches. Since before the creation of our government, such searches have been

deemed obnoxious to fundamental principles of liberty”) (citation omitted).

If this Court permits “routine” border searches of laptop computers, it will

be authorizing precisely the kind of general search that the Framers rejected, albeit

through technologies they could never have anticipated. In seizing and searching a

laptop computer, border agents can scrutinize huge amounts of information,

communications, and activities of the computer’s owner, his or her family, and his

or her business. Thus:

computer technologies may allow warrants that are particular

on their face to become general warrants in practice. Computers

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 tend to play an ever greater role in our lives as computer
technologies advance, as they are likely to record and store
increasingly detailed pictures of our daily experience. … These
trends suggest that as time passes, rules created to prevent
general searches for physical evidence may result in the
equivalent of general searches for digital evidence.

Kerr, at 565-566. This concern is amply borne out not only by this case but by

other recent cases. See, e.g., United States v. Park, No. CR-05-375, 2007 WL

1521573 (C.D.Cal. 2007). Customs officials in fact conduct sophisticated searches

of seized computers, looking at documents, deleted files, and Internet caches. E.g.,

Romm, 455 F.3d at 993; United States v. Furukawa, No. 06-145, 2006 WL

3330726 at *3-4 (D. Minn. Nov. 16, 2006). Thus, the laptop search at issue in this

case is exactly the kind of unfocused, unwarranted, unchecked government search

that the Founders sought to prohibit by passing the Fourth Amendment.

6. There is a real risk of unconstrained “pretext” searches.

Whenever law enforcement exercises unchecked power over its citizens,

there is great risk that the government will, or will be perceived to, abuse that

power. Amici are thus concerned that the government may access a traveler’s

computer under the border search doctrine as a pretext for reasons unrelated to the

customs laws. Border searches “made solely in the enforcement of Customs laws”

must be distinguished “from other official searches made in connection with

general law enforcement.” Alexander v. United States, 362 F.2d 379, 381 (9th Cir.

1966), cert. denied, 385 U.S. 977 (1966) (“Congress has in effect declared that a

19
search which would be ‘unreasonable’ within the meaning of the Fourth

Amendment, if conducted by police officers in the ordinary case, would be a

reasonable search if conducted by Customs officials in lawful pursuit of unlawful

imports.”)

This Court should not allow the border search doctrine to override the rights

of international travelers. One court described as “far-fetched” the possibility that

“any person carrying a laptop computer . . . on an international flight would be

subject to a search of the files on the computer ‘hard drive.’” United States v.

Ickes, 393 F.3d 501, 50607 (4th Cir. 2005); id. at 507 (“Customs agents have

neither the time nor the resources to search the contents of every computer.”).

Unfortunately, the concern is no longer far-fetched; it has become a reality. While

the government obviously does not search the contents of every laptop computer

carried over the border, the government asserts that it may indeed search the

contents of any and every one of those computers.5

Ultimately, of course, the constitutional question does not revolve around

the number of computers that the government searches and seizes, but on the

justification for its practice. Under the law the government seeks, agents would

have a logical rationale for seizing and searching the contents of the laptop

5
As technology improves so will the governments ability to download computers
and electronic media on a real-time basis.

20
computers carried by the family members of someone under criminal investigation,

thus evading the otherwise burdensome limitations of the Fourth Amendment.

Such a search is only one example of what the government asks this Court to

authorize as routine and constitutional. If the government lacks probable cause to

search a traveler’s laptop computer inside the United States, the government may

exploit the border search doctrine by waiting until the person travels

internationally. Given the frequency of international travel in the modern era, and

given the commonness of laptop computers and similar electronic devices, law

enforcement would naturally exploit such a loophole, if the courts permit.

Further, as Customs officials improve their ability to search computers,

border searches of computers will become easier and more commonplace in the

future. In short, the tremendous and ever-increasing storage capacity of modern

computers may encourage the police to use border search authority to look for

evidence of other types of crimes stored inside the suspect's machine.

United States v. Schoor, 597 F.2d 1303 (9th Cir. 1979), does not foreclose this

argument. In Schoor, DEA agents who lacked probable cause to search alerted

Customs officials that two passengers suspected of smuggling heroin in transistor

radio shipments were en route to the United States on a flight from Thailand and

requested that Customs search them, as they might be carrying narcotics. While

this Court noted that “[t]he source of [customs officials’] suspicion is irrelevant in

21
sustaining the search,” id. at 1306 (citation omitted), the search in Schoor did not

involve materials that raise the kinds of privacy concerns at issue in a search of a

laptop computer. Cf. United States v. Alfonso, 759 F.2d 728, 737-38 (9th Cir.

1985) (“a search of the private living quarters of a ship is more intrusive than a

search of other areas. . . . even in the context of a border search, the search of

private living quarters on a ship should require something more than naked

suspicion”).

7. The First Amendment protects many of the contents on laptop computers.

The First Amendment imposes special constraints on searches for and

seizures of presumptively protected material, Lo-Ji Sales, Inc. v. New York, 442

U.S. 319, 326 n.5 (1979), and requires that the Fourth Amendment be applied with

"scrupulous exactitude" in such circumstances. Stanford, 379 U.S. at 485.

Consequently, the Court has imposed particularized rules applicable to searches for

and seizures of allegedly obscene films, books, and papers. See, e.g., Roaden v.

Kentucky, 413 U.S. 496, 497 (1973) ("seizure of allegedly obscene material,

contemporaneous with and as an incident to an arrest for the public exhibition of

such material . . . may [not] be accomplished without a warrant"). These rules,

moreover, must be understood as protecting not only the defendant in this case but

the public at large. See Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir.

1972).

22
 In addition, the First Amendment implications of these searches undermine

the government’s attempt to define laptop computers as ordinary closed containers.

Indeed, in Heidy v. U.S. Customs Service, 681 F. Supp. 1445 (C.D. Cal. 1988), the

district court explained that “[b]order search cases relaxing fourth amendment

standards solely for the purpose of facilitating detection of physical objects sought

to be imported unlawfully therefore are inapposite to this [informational] case.”

Id. at 1450 (footnote omitted). Thus, “limited reading or perusal of writing that

appears on objects sought to be imported inevitably may be required for the

purpose of identifying the objects themselves,” but “a reading for the purpose of

revealing the intellectual content of the writing requires encroachment upon first

amendment protections far beyond the mere search and seizure of materials.” Id.

This case involves the intellectual content of laptop computers. As soon as border

agents cease looking for physical contraband inside a computer and instead begin

reviewing the electronic files on the computer, they cross an important

constitutional threshold.

a. Personal computers are critical to private communication.

Private communications are generally protected by the Fourth Amendment.

Katz v. United States, 389 U.S. 347, 352 (1967). While physical entry of the home

was the Framers’ main concern, after Katz the “broader spirit” of the Fourth

Amendment “now shields private speech from unreasonable surveillance.” United

23
States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972) (Keith) (“the broad and

unsuspected governmental incursions into conversational privacy which electronic

surveillance entails necessitate the application of Fourth Amendment safeguards.”)

(footnote omitted). Along with Berger, Katz reinforced the Fourth Amendment’s

concern for the sanctity of personal communications.

Katz also made clear that constitutional protections must evolve with

modern technology and social practices. In rejecting a pure “trespass” approach to

the Fourth Amendment that would have denied protection to telephone

communications, the Supreme Court explained: “To read the Constitution more

narrowly is to ignore the vital role that the public telephone has come to play in

private communication.” Katz, 389 U.S. at 352. The same values and logic

underlie the district court’s correct decision here. The personal computer (and

other modern electronic devices) is central to private communication today. Under

Katz and its progeny, border searches of laptop computers cannot be routine; to do

so would ignore the personal computer’s “vital role.”

Personal computers and many other types of personal devices are frequently

used not only to communicate with others via email, instant messenger services,

blogs, chat rooms, and bulletin boards, but also simply to read information from

the Internet, a new and powerful medium of expression that covers a range of

topics “as diverse as human thought." Reno v. ACLU, 521 U.S. 844, 852 (1997); id.

24
at 863 (Internet “is the most participatory form of mass speech yet developed,

entitled to the highest protection from governmental intrusion.”) (internal citations

omitted).

This protection is not limited to the contents of a person’s writings or

communications; it extends as well to his or her identity and the identity of his or

her correspondents. In the modern context, it includes knowledge about a person’s

interests, the websites he or she reads, and the electronic files that he or she

downloads. “Anonymity is a shield from the tyranny of the majority. It thus

exemplifies the purpose behind the Bill of Rights, and of the First Amendment in

particular: to protect unpopular individuals from retaliation -- and their ideas from

suppression -- at the hand of an intolerant society." McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 357 (1995) (citation omitted).

b. Indiscriminate searches of information stored on laptop computers will

chill speech.

The Supreme Court has long been vigilant about the potential for

overreaching governmental power to chill speech. “It is characteristic of the

freedoms of expression in general that they are vulnerable to gravely damaging yet

barely visible encroachments.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66

(1963). The danger of unauthorized official surveillance parallels the danger of

official censorship, which lies “not merely [in] the sporadic abuse of power by the

25
censor but the pervasive threat inherent in its very existence.” Thornhill v.

Alabama, 310 U.S. 88, 97 (1940).

This concern links the First and Fourth Amendments. Indeed, the Framers

adopted the Bill of Rights “against the background of knowledge that unrestricted

power of search and seizure could also be an instrument for stifling liberty of

expression. Marcus, 367 U.S. at 729. Surveillance of private communications

therefore poses a grave danger to free speech. “History abundantly documents the

tendency of Government--however benevolent and benign its motives--to view

with suspicion those who most fervently dispute its policies.” Keith, 407 U.S. at

314. Thus, “fear of unauthorized official eavesdropping” may “deter vigorous

citizen dissent and discussion of Government action in private conversation.” Id.

at 314.

This danger inheres in suspicionless border searches of travelers’ laptops,

especially given that the Customs Service is authorized to block the importation of

“any book, pamphlet, paper, writing, advertisement, circular, print, picture, or

drawing containing any matter advocating or urging treason or insurrection against

the United States, or forcible resistance to any law of the United States.” 19

U.S.C. § 1305; see Heidy, 681 F. Supp. at 1450-51 (where Customs targeted

materials regarding political dissent, “no dispute that the reading of the materials in

26
question and the creation and retention of the Records of Non-Violation ‘chill’

Plaintiffs' rights of expression”).

c. Any rule permitting border searches of computers must ensure

reasonable particularity, minimization and oversight.

The usual Fourth Amendment mechanism for protecting privacy is prior

judicial authorization based on probable cause and specifying the scope of the

search with particularity. In Katz, the Supreme Court explained that “bypassing a

neutral determination of the scope of a search leaves individuals secure from

Fourth Amendment violations only in the discretion of the police.” Katz, 389 U.S.

at 358-359 (internal quotation and citation omitted); Keith, 407 U.S. at 318 (“post-

surveillance review would never reach the surveillances which failed to result in

prosecutions. Prior review by a neutral and detached magistrate is the time-tested

means of effectuating Fourth Amendment rights.”) (citation omitted).

Accordingly, the Supreme Court has often relied on the judicial check when

it permitted searches with a significant nexus to First Amendment material.

Andresen, 427 U.S. 463, 482 n.11 (1976) (“In searches for papers, it is certain that

some innocuous documents will be examined, at least cursorily, in order to

determine whether they are . . . among those papers authorized to be seized.

Similar dangers . . . are present in executing a warrant for the ‘seizure’ of

telephone conversations. In both kinds of searches, responsible officials . . . must

27
take care to assure that they are conducted in a manner that minimizes unwarranted

intrusions upon privacy.”).

When there is no judicial check, as in the border search doctrine, the only

avenue of restraint is clear and objective statutory or regulatory standards. For

example, Ramsey clearly recognized that unconstrained border searches would

chill speech. Although Ramsey found that border searches of international mailed

letters did not chill speech, it expressly limited that finding to “the existing system

of border searches,” which plainly required “’reasonable cause to believe’ the

customs laws are being violated prior to the opening of envelopes” and “flatly

prohibit[ed], under all circumstances, the reading of correspondence absent a

search warrant.” 431 U.S. at 623. Ramsey thus avoided the First Amendment

issue based on “the existing statutory and regulatory protection.” Id. at 624

(footnote omitted).

Clearly, the reasonableness of a border search, at least where expression is

involved, depends on legal constraints on official discretion. Cf. Flores-Montano,

at 159 (Breyer, J., concurring) (“Customs keeps track of the border searches its

agents conduct, including the reasons for the searches. This administrative process

should help minimize concerns that gas tank searches might be undertaken in an

abusive manner.”) (internal citation omitted); see Heidy, 681 F. Supp. at 1453

(rejecting Customs “Policy Directives” regarding searches of records of travelers’

28
expressional materials as “constitutionally impermissible” because of “chilling

effect of this risk upon the exercise of first amendment rights of law-abiding

citizens”).

In this situation, by contrast, there is no accountability mechanism or

carefully drawn policy to protect privacy or First Amendment rights, either for Mr.

Arnold’s computer or for the border searches of travelers’ computers generally.

Arnold, 454 F. Supp. 2d at 1004 (“the government has not provided the Court with

any record of the search that was completed at or near the time of the incident”).

IV. CONCLUSION

It is clear from the above discussion that the government’s appeal downplays

the constitutional concerns raised when border agents randomly search and seize

laptop computers from international travelers. The government’s appeal likewise

fails to acknowledge the logical end of its argument; the government ultimately

assumes that the Fourth Amendment prohibits the federal courts from offering any

constitutional oversight of border searches and seizures that do not involve the

human body. In so arguing, the government fails to accord personal privacy the

constitutional value it was given by the Framers.

In closing, amici emphasize that the District Court here required only

reasonable suspicion of a crime before border agents may properly search the

contents of a traveler’s computer. Amici, like all Americans, greatly value secure

29
national borders, but also urge the Court to require that our borders be policed

reasonably. Random suspicionless searches and seizures of laptop computer

simply do not square with the Fourth Amendment’s mandate of reasonableness.

Amici respectfully request that the Court affirm the ruling below.

Respectfully Submitted,

________________________
RANDALL BRATER
Arent Fox LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
202-857-6000

Of Counsel:

JOHN M. GURLEY
TIMOTHY P. KANE
Arent Fox LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
202-857-6000

Attorneys for Amici Curiae

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