Friday, January 11, 2008

Laptops at the border ...

Gridskipper has an interesting post dealing with the government's ability to search your belongings when entering the U.S. border. This is interesting to me now that I am taking criminal procedure.

It's well established that when an individual enters a secure zone, you basically give consent for the government to search your property. It's basic choice: agree to let them look through your stuff or leave the area. This is why it's constitutional for the TSA to look through your stuff at the airport. The same applies to border crossings. So then an interesting question arises: does the government also have the right to browse through the data contained in devices going through the border? According to an L.A. district court, "Electronic storage devices function as an extension of our own memory, they are capable of storing our thoughts, ranging from the most whimsical to the most profound." This means data from the laptop you carry across the border is not admissible at trial.

The post argues that this extension of our minds to cover data on devices will probably be reversed. However, the good news is that you cannot be forced to give up the password to your encrypted data by the government as this would violate 5th amendment right against self incrimination. So here is my follow up question: does this means that if the government can crack your encryption, they can use any resulting personal data as evidence against you? I'll ask my professor ....

2 comments:

Anonymous said...

How is a computer an extension of one's memory any more than a journal or a photo album...or are those things protected too?

Franklin said...

Your comment points out how weak this memory extension argument is. But going along with it, I would say that a journal where you confess to a crime would be equivalent to self incrimination, which is protected. A photo album on the other hand I don't think is protected. The fact that you create evidence that can be used against yourself is not self incrimination under the 5th amendment. However, something personal not meant to be revealed to others like a journal or writings on a computer is a snapshot of your mind and thoughts, and that cannot be used against you since this is equivalent to you testifying against yourself, just in a different medium.