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Ancient chinese curse: may you come to the attention of the authorities

By August 19, 2008law

Picture_8Michael Arnold came back to Los Angeles in the Summer of 2005 after spending three weeks visiting some friends in the Philippines. He had his laptop with him, and that turned out to be a problem. Customs agents selected him for ‘secondary questioning’ and asked him to fire up his laptop. They proceeded to look through it and found a folder labelled ‘Kodak memories.’ In the folder was a picture of two nude women.

Not surprisingly, this attracted the attention of the border folks but not so much from an ‘artistic sense’ as from a ‘deeply suspicious authoritarian sense.’ They searched more and found what they claimed were pictures that constituted ‘child pornography.’ Mr. Arnold was charged by a federal grand jury with knowingly transporting child pornography.

Welcome back to the United States.

His pro bono lawyer filed a motion to suppress the ‘evidence’ because it was found during a warrantless and suspicionless search. The district court granted the motion to suppress, but the Ninth Circuit reversed and held that border agents don’t need a reason to search laptops of people entering the country. Needless to say, this decision is sending some shock waves through the blogosphere.

Why? Well for starters no one trusts the government employees who work as border agents. Airport security has become a joke as elderly people in wheelchairs with artificial knees are assumed to be devious terrorists and kindly grandmothers are having their perfume bottles confiscated. When was the last time the TSA captured a real live terrorist? It must be boring to be a customs agent.

Fortunately there is a whole new area of crime prevention: child pornography. And, while most pornography is found on the Internet, border agents are now apparently focusing on traveling laptops. Maybe if Mr. Arnold hadn’t had that picture of the two nude women in his Kodak memories folder the agents wouldn’t have kept poking around his computer and found what (they claim) was child pornography. What if his attorney kept copies of the supposedly offending pictures on his laptop (as part of his case preparation) and then travelled out of the country? Upon his return he might face the prospect of being unnecessarily hassled by bored government employees. Maybe he’d wind up having to hire his own attorney. Welcome to the “war on child pornography.”

How can travelers avoid having their vacation life ruined by authorities with unfettered discretion to probe their digital data?

The Electronic Frontier Foundation has some good tips. The first recommendation most people offer (including the EFF) is to encrypt your hard drive. Another one is to send any possible ‘offending material’ back via the Internet (encrypted, of course). Seems like traveling has become more trouble than its worth.

So many questions arise from this story. First, why is the government even wasting time with this kind of thing? Child pornography is not as bad as many other things that are happening in our world. Many people are terribly offended by it of course, and they argue that pornography leads to abuse etc. So what? Lots of things lead to other things. If we spent all our time chasing permutations and ramifications we wouldn’t have any time to impulsively buy things, or listen to talk radio.

The main question for those who might be packing risqué photos on their laptops is this: how can I avoid major jail time? I don’t have a great answer except to say that that encrypting your hard drive shouldn’t be your first line of defense. Keeping a low profile is key. If the authorities ask to see your computer and find out it’s encrypted you will officially no longer have a ‘low profile.’

More thoughts from the EFF here.

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  • Marc says:

    What a frightening story! Its stuff like this that makes me afraid to leave the freaking country. And my wife wonders why I tell her not to take any pics of the kids which even remotely can be considered inappropriate.

  • Nick says:

    Wow! We can’t travel with naked pictures of high school students in our laptops. Why evan go on vacation anymore.

  • A. Non says:

    Lawyers who travel across the border have particular concerns. If the data on a lawyer’s laptop includes confidential client data, the lawyer may not simply give the computer up for inspection. I am waiting to see emergency applications for TROs filed in Federal courts dealing with this issue. Unlike other recognized privileges, the courts usually do pay attention to the attorney-client privilege.

  • Tom says:

    Yeah, that’s not at all what you said.

  • Ernie says:

    The problem that I focused on is hard to detect. Allow me to simplify: what some people call child pornography is often not in fact child pornography. But if you feel that it always is, and that the government is always right, then you should support giving up freedoms to eradicate any type of indecency involving children. Just so you know, however, it might prevent parents from having pictures of their children taking baths. You know those cute pictures of toddlers with soap bubbles covering their faces and all?

  • kieran flave says:

    ‘Child pornography is not as bad as many other things that are happening in our world. Many people are terribly offended by it of course, and they argue that pornography leads to abuse etc. So what? Lots of things lead to other things.’

    I hope this paragraph is some kind of joke. Child pornography involves depicting children in sexual acts, sometimes simulated, sometimes very real. Often kids are forced to have sex and are effectively raped at the age of 10 or 11. This may not be as bad as the genocide in Darfur, but it’s pretty bad, and for you to pretend it’s as inconsequential as a traffic violation makes me think you’ve got some on your computer. There really is no other explanation for this perverse gap in logic.

    Child pornography doesn’t just ‘lead to’ abuse, it IS abuse.

    I could point out the other gaps in logic in this post — for example, the idea that TSA is useless because it has ‘never caught a real live terrorist’, or that we should stop screening old people at checkpoints, or that laptops should never be screened because it makes it oh so tough for you to travel. No point, really — the child porn comments take the cake.

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