Computer Privacy and Legal Maneuvering

Adam Liptak has an interesting article in The New York Times. There are a couple of cases wending their way through the appellate courts that deal with the government’s ability to search hard drives on computers at borders.

The question seems to boil down to what is a computer like? Lawyers always draw analogies. If a situation is like “A,” we’ll use the rule we’ve developed for A. If it is more like “B,” then we’ll use that rule. So, everyone agrees that customs agents can open your suitcase and rummage through it. Is a computer just a fancy container for information, the information being analogous to clothes that can be pawed with impunity? Or is the computer more like a storage annex for our brain? The Fifth Amendment protects us against demands that we speak to incriminate ourselves. The Fourth Amendment protects us against unreasonable searches.

The question, in the context of a search at a border, doesn’t give a true picture of all the competing issues because of the government’s “interest” in national security. Take the same questions and ask them in the context of a traffic stop when you are accused of speeding. Yes, the officer can ask if you were speeding and how much you’ve had to drink; but, you don’t have to answer. Can the officer look anywhere in the car that you can reach so as to not be surprised by the gun you are hiding? Sure. Is the suitcase on the back seat fair game? Probably. How about in the trunk? For the most part, no (there are a few exceptions that can be big enough to drive a truck through, primarily “search incident to arrest”). How about your paper notebook sitting on the passenger seat in which you wrote a detailed account of the past four hours of drinking at the local bar – Situation “C?” Can the officer shake it and riffle the pages to make sure you aren’t hiding a knife? Yep. Can he read through it and find out about the past four hours? Probably not. There, the officer has to have “probable cause” to believe that you’ve done something illegal, and a judge has to agree, before the reading commences.

So, back to the laptop, outside of the border context. Isn’t it just an electronic notebook, hence one of its names? I think it probably is. To be safe, you might want to get a copy of Pretty Good Privacy.