University of Southern California

Arnold, Digital Media, and the Resurrection of Boyd

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Postscript (Comment) by Brian M. Hoffstadt
November, 2007

In the fall of 2006, United States District Judge Dean D. Pregerson handed down United States v. Arnold, which held that U.S. Customs agents violated the Fourth Amendment when they searched a laptop computer belonging to an inbound international traveler at Los Angeles International Airport without any particularized suspicion. The Ninth Circuit recently overturned the district court’s ruling, but the district court’s analytical approach remains of vital interest. That is because the decision was the first in the nation to find that the “border exception” to the Fourth Amendment—which permits law enforcement to conduct suspicionless, routine searches of personal items crossing the international border or its functional equivalent—did not apply to laptop computers. Given its novelty and potential implications for all digital media, it is hardly surprising that the district court’s ruling in Arnold has grabbed the attention of the press, law student commentators, civil liberties lawyers, and, most notably, other judges.

Curiously enough, the district court in Arnold rested its holding on the Supreme Court’s recent decision in United States v. Flores-Montano. There, the Court held that border agents looking for illegal drugs could dismantle the gas tank of a car crossing the border without any need to demonstrate suspicion because “the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person—dignity and privacy interests of the person being searched—simply do not carry over to vehicles.” Prior to Arnold, the lower courts had taken a cue from the Supreme Court’s prior decisions and had defined “intrusiveness”—and the attendant affronts to dignity and privacy—solely in terms of physical intrusiveness, finding that physically intrusive strip searches or body cavity searches, or searches which destroyed objects, were “nonroutine” and thus had to be justified by “reasonable suspicion” that the international traveler was engaged in illegal conduct; all other border searches, however, were deemed “routine” (or were simply not labeled at all) and could be conducted without any suspicion at all. Indeed, the Ninth Circuit in Arnold ultimately adopted that reasoning. The district court’s decision, however, had seized on the Supreme Court’s reference to “dignity and privacy interests” and took a more expansive view of intrusiveness, reasoning that “the search of one’s private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person” than physically intrusive searches.

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