Searches of Computers and Computer Data at the United States Border: The Need for a New Framework Following United States v. Arnold
Sara M. Smyth
Bond University - School of Law
February 18, 2009
Journal of Law, Technology and Policy, Vol. 1, 2009
I will argue that the Ninth Circuit was wrong to dispense with the routine/non-routine framework with respect to searches of electronic storage devices and further incorrect to link the intrusiveness analysis to the physical destruction of property alone. Electronic storage devices must be regarded as sui generis because they are capable of storing vast amounts of intimate and sensitive information. For example, one commentator has observed that "computer hard drives sold in 2005 generally have storage capacities of about eighty gigabytes, roughly the equivalent to forty million pages of text - about the amount of information contained in the books on one floor of a typical academic library." Also, computers contain significant "intermingling" of potentially relevant information, such as child pornography and other electronic contraband, with information which is highly personal, confidential or even proprietary.
In analyzing searches and seizures of computers and computer data, a number of judicial and academic commentators have identified the need for a "special approach." The new approach can be modeled on the framework developed in recent cases dealing with the government's ability to conduct "sense-enhanced" searches, which involve the use of new methods or techniques that provide information that would otherwise be unavailable through the use of ordinary sensory perception. The "exposure-based approach" recognizes the need to limit the scope of the search to avoid exposing vast amounts of personal information over which the individual has a reasonable expectation of privacy. In order to be constitutional, the border search of electronic storage devices should be characterized as non-routine and limited to that which is necessary to prove the government agent's reasonable suspicion.
This Note is divided into a number of Parts. Following this Introduction, Part II provides a general overview of the border search doctrine. Part III discusses the circuit court decisions leading up to Arnold. Parts IV and V provide an overview of the decisions of the District Court and the Ninth Circuit in the Arnold case and Part VI explores the legal ramifications of the Ninth Circuit's decision in light of the principles enunciated in the recent cases dealing with sense-enhancing technologies. Part VII applies the new "exposure based" approach, which is examined herein, to the facts of the Arnold case.
Number of Pages in PDF File: 36
Keywords: Arnold, Routine or Non-Routine Search, Border Doctrine, Fourth Amendment, Search and Seizure, Computer, Reasonable Suspicion, Sense-Enhanced SearchesAccepted Paper Series
Date posted: February 21, 2009
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