United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008), is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports.United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), amended on denial of rehearing en banc, 533 F.3d 1003 (9th Cir. 2008).

This decision has caused worry and some controversy among Fourth Amendment advocates, such as the Electronic Frontier Foundation. Especially troubled are those that legitimately store sensitive business, legal, or customer data; who worry that federal agents might leak information found from laptop searches. Several legislators have discussed and introduced measures to counter the ruling in order to provide more protection to travelers, but none have become law.

Background to the case On July 17, 2005, Michael Arnold arrived at Los Angeles International Airport (LAX) after spending a three-week vacation in the Philippines. After retrieving his luggage, Arnold proceeded through the checkpoint at customs. Customs and Border Protection (CBP) Officer Laura Peng saw Arnold waiting in line and selected him for secondary questioning.

Peng questioned Arnold, and began inspecting his luggage, noting a laptop computer and several computer accessories. Peng instructed Arnold to turn on the computer so she could see if it was functioning. CBP Officer John Roberts was called to assist with the inspection while the computer was booting up.

Among the icons displayed on the computer's desktop, two were named "Kodak Pictures" and one was named "Kodak Memories". Peng and Roberts opened these folders, began viewing the photos, and noted one that depicted two nude women. At that point special agents from U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE) were called. Arnold was detained and questioned by the ICE agents for several hours. They further examined the computer and equipment, and found numerous images of what they believed to be child pornography.

Arnold was released, but his computer was seized by the agents. Federal agents obtained a warrant two weeks later. Arnold was charged with (1) knowingly transporting child pornography,18 U.S.C. Section 2256(8)(A). (2) knowingly possessing a computer hard drive and compact discs which both contained more than one image of child pornography, and (3) knowingly and intentionally traveling in foreign commerce and attempting to engage in illicit sexual conduct with a person under 18 years of age.18 U.S.C. Section 2423(f).18 U.S.C. Section 2423(c) .

Arnold filed for a motion to suppress, and argued that the government required reasonable suspicion to conduct the search. This motion was granted by the District Court, ruling in Arnold's favor. The Government promptly appealed the case, and stated that the border doctrine took precedence over the Fourth Amendment's protection from unreasonable search. The Ninth Circuit Court of Appeals overturned the lower court's ruling, holding in favor of the Government. Arnold was represented in the District Court and before the Ninth Circuit by Marilyn E. Bednarski and Kevin J. LaHue, of Kaye, McLane, Bednarski, & Litt.

Arguments

Reasonable search The crux of Arnold's argument is that a laptop is very similar to a person's home and the human mind, much more so than an ordinary container for data. His argument is based on the notion that a laptop has the ability to store a greater amount of data and personal documents, much like those stored in one's home. He continued to argue that because a laptop is able to record ideas, e-mail, internet chats, and web-surfing habits, it is very similar to the "human mind." Under these arguments he sought the protection of the Fourth Amendment, which states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... ".

Arnold also raised the exception that the government's searches are limited in cases where they are of a "particularly offensive manner," and argued that such was the case when CBP officers seized and searched his laptop.

The Electronic Frontier Foundation filed an amicus brief in support of Arnold.EFF, Amicus brief in United States v. Arnold. The amici included the EFF and the Association of Corporate Travel Executives (ACTE). The brief argued that the government's position and current practice subjects travelers to unconstitutional invasive searches of laptops and other devices. Their argument is similar to that already made by Arnold, and they contended mainly that a computer is different from a gas tank, suitcase, or other closed container because laptops routinely contain some of the most personal information about a person's life. Moreover, the amici were concerned that a search would reveal information that is already protected under other statutes, including privileged legal communications, reporters' notes from confidential sources, and trade secrets.

In summary, the main points of the brief are that: (1) people have a reasonable expectation of privacy in the information stored on their laptop computers; (2) searches of personal electronic information devices ... are particularly invasive of personal privacy; (3) the volume of information stored on computers means that the privacy invasion of a laptop border search is enormous; (4) personal computers often contain information that the individual does not know about, or has even sought to erase; (5) laptop computer searches are indistinguishable from "general searches;" (6) there is a real risk of unconstrained "pretext" searches; and (7) the first amendment protects many of the contents on laptop computers. The final point raised the worry that indiscriminate searches of information stored on laptops will discourage people from storing sensitive data, thus causing a chilling effect on speech.

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 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." ... [a]s a result, our laptop computers contain as much information about us as our homes contain - perhaps more.

Overall, the amici were concerned that unchecked compliance with the border doctrine would infringe too far on a citizen's First and Fourth Amendment rights. In their view, the doctrine did not provide the protection that it was meant to enact, as technology now provides ways to maneuver around it. " ... a smuggler's 'container of choice' for electronic contraband is the internet. They may simply email it to themselves or post it online to avoid customs searches. A ruling that overturns the decision would not undermine the government's ability to protect its borders."

Border doctrine

In response to Arnold's motion to suppress, the government argued two points. Firstly, the Fourth Amendment did not require reasonable suspicion because of the border doctrine. Secondly, even if reasonable suspicion were required, it was present.

The government argued that the United States has a duty to take measures to ensure the safety of its interior. Past cases have stated that "it is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity." In United States v. Ramsey, the court stated that "searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border ... " . In the case of Arnold, the point that linked these two conclusions together was the notion that international American airports are the functional equivalent of a border, as stated in Almeida-Sanchez v. United States..

Reference was also made to a history of searches of closed containers such as a briefcases, purses, wallets, pockets, pictures, film, and other graphic material. These items are the equivalent of a closed container, and have traditionally been searched at the border without particularized suspicion. It is acknowledged that some limits have been made, specifically a traveler's alimentary canal. Such limitations are made when searching a person, not their objects in possession, in the interest of human dignity and privacy, which the Fourth Amendment protects.

Judgment

Reasonable search The Court addressed the argument that the search of Arnold's laptop was carried out in a particularly offensive manner, and was so destructive that it required particularized suspicion. The court acknowledged that there was no precedent to declare when a border search should be deemed unreasonable. The Supreme Court has left open the question of the circumstances that make a search particularly offensive, and thus unreasonable. However, the Court pointed out that Arnold never claimed that his laptop was damaged in any way during the government's search.

Even without a clear scale to determine how offensive a search may be, the Court dismissed the reasoning of the District Court that particularized suspicion was needed in the case of Arnold. The District Court-based this decision on previous cases that related to search of the human body, not of property.

Border doctrine The Court distinguished searches at American airports because they are considered border searches, and occur at the "functional equivalent of a border". Previously, the Supreme Court had stated that:

To address Arnold's claim that a laptop is like a home, and therefore requires Fourth Amendment protection, the court dismissed his argument as without merit. Its decision is based on previous Supreme Court judgments that have denied Fourth Amendment protections to property which is also "capable of functioning as a home.".

Lastly, the Court addressed a comparison to United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). In that case, a man's van was stopped and searched as he was driving from Canada into the United States. The court upheld the border search doctrine, and the Ninth Circuit acknowledged the concerns and followed the reasoning that carving out a First Amendment exception to the border doctrine would (1) protect terrorist communications "which are inherently 'expressive'"; (2) create an unworkable standard for government agents who "would have to decide - on their feet - which expressive material is covered by the First Amendment"; and (3) 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."

By this reasoning, the Court justified the government's interest in preventing unwanted persons and effects as greater than a person's desire to conceal the contents of their baggage. The decision of the District Court was overturned, ruling in favor of the government.

Subsequent developments

Death of Arnold On February 23, 2009, the Supreme Court of the United States notified Arnold's counsel that it had denied Arnold's petition for writ of certiorari.Docket for 08-6708 Arnold v. United States Attorneys for Arnold filed a motion to de-publish the Ninth Circuit opinion (which was denied).United States v. Arnold, Appellee Arnold's Motion to De-Publish Opinion (Mar. 3, 2009). In their motion, Arnold's counsel explained that two days after being informed of the Supreme Court's refusal to hear his appeal, Arnold committed suicide.

Controversy