Can the government take away my laptop?

On July 17, 2005, Customs and Border Patrol agents at Los Angeles International Airport stopped a U.S. citizen named Michael Timothy Arnold for secondary questioning. Arnold had just arrived at the airport from the Philippines. During the questioning, an agent asked Arnold to turn on his laptop computer. Arnold complied, and the agent handed the laptop over to a coworker.

The second agent looked at Arnold's computer desktop and saw that two folders contained pictures. The agent opened the folders and viewed the photos. Before long, the agent began to suspect Arnold possessed child pornography. The agents seized the laptop and other equipment but let Arnold go.

Two weeks later, federal agents secured a warrant against Arnold based on the material found on Arnold's digital media. That included not only the laptop, but several CDs, a portable hard drive and a flash memory drive. Agents charged Arnold with possession and transportation of child pornography.

Arnold's lawyers filed a motion to suppress the evidence found by the agents. They claimed that the agents overstepped their authority by searching Arnold's electronic data. They argued that while it's almost second nature to expect agents to search for potential physical threats that could pose an immediate danger -- a bomb disguised as a laptop, for example -- actually searching the contents of the devices was another matter.

The district court agreed with Arnold's lawyers and suppressed the evidence. But the prosecution appealed the decision, and the case went to a higher court. That court reversed the district court's decision, saying that searches at the U.S. border, including customs, are exempt from the qualifications government agents must meet for searches elsewhere [source: United States v. Arnold].

Arnold's lawyers appealed that ruling, and the case moved to the 9th Circuit Court in San Francisco, California. In a 3-0 decision issued on April 21, 2008, the court ruled to uphold the previous court's decision to reverse the ruling [source: United States v. Arnold]. The court's decision means that in order to protect national security, federal agents can confiscate electronics without probable cause and search them for evidence of a crime.

While the U.S. Department of Homeland Security says it intends to use this policy to help protect the United States from terrorist attacks, the judgment itself says agents can look for evidence of any crime at all. That means agents can comb through files and look for anything that might be illegal. Electronic searches can take days, weeks or even months to complete. Agents can confiscate electronics for an indefinite length of time -- there's no way of knowing when, or if, the government will return a device to the owner.

Much of the response online to the 9th Circuit Court's decision has been critical. There are numerous Web sites that lob the term unconstitutional around. Others focus on how people can protect their equipment and information when traveling to the United States. A few Web sites support the initiative, pointing out the very real difficulty in protecting a nation like the United States from the threat of a terrorist attack.

Some critics say that the policy is too broad to be considered a protection against terrorism. They say that if federal agents can search electronic devices for evidence of any crime at all -- as was the case with Michael Arnold -- then the policy doesn't really target terrorists. Instead, it targets everyone.

Some people shift from criticism into the realm of conspiracy theory. These people suggest that organizations like the Recording Industry Association of America (RIAA) are lobbying for these policies. The theorists believe that these organizations hope to use federal agents to search for illegally obtained music or media files. Effectively, the federal government would act as the music police. While there's little doubt these organizations will benefit from the U.S. policy on searches and seizures, there's no real evidence to link them with the decision of the courts.

According to The Washington Post, several international businesses are changing their policies on international travel. The businesses are urging executives to avoid storing confidential business information on laptops when traveling to the United States. International businesses fear that the U.S. policy will compromise critical, proprietary information. In addition, if the critical information only exists on the confiscated device, the business is at the mercy of the U.S. government [source: Nakashima].

Some bloggers focus not on changing the policy or protesting, but on how to get around the system. Here are a few of the methods they suggest:

Of course, hiding information from customs agents isn't advisable. For one thing, if a government agent catches on that someone is hiding information, things will likely get much worse before they get better. For another, if enough people take measures to hide information, the government might push for more invasive policies. It's probably safe to say this story is far from over.