MSBA Computer and Technology Law Section

Reasonable Suspicion not Required for Laptop Search at Int'l Airport

Generally, border search agents are given wide lattitude to conduct searches relative the reasonableness of suspicion¹ and, which provides an exception to the warrant requirement.² 

Some time ago, I posted a story concerning a border exception to the warrant requirement, where a border agent inspected a laptop and discovered contraband (click here).  From the Ninth Circuit, U.S. v. Arnold, we have a similar underlying fact situation, except that the question before the court concerns the reasonableness of the intrusion:  In its April 21st opinion, the Court held that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.  The Court found unavailing defandant's numerous arguments --some bearing stretch marks-- such as that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” ² and the “human mind.”³  Consequently, the Court reversed the trial court's suppression order, thereby permitting prosecution to proceed.

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¹ See, generally, United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

² Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant.  For Fourth Amendment purposes, an international airport terminal is the "functional equivalent" of a border.

³  Defendant’s analogy of a laptop to a home was based on a conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home.

⁴  Defendant urged that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

Facebook and Privacy: Blockbuster Sued Over Alleged Privacy Breach

An interesting privacy lawsuit has been filed, in what seems to be perfect timing for our section -- between Kate Andresen's CLE at our April meeting, "Is Privacy a Realistic Goal in the Digital Age of the Internet and Social Networking Sites?" and Michael Fleming's CLE for our upcoming Annual Meeting, "Privacy Regulation by Proxy: How Customers Can Ensnare Their Vendors in Data Security Laws."

A Dallas woman has sued Blockbuster over its participation in Facebook's Beacon marketing program.  According to the complaint, the woman rented videos from Blockbuster, who passed along her rental info to Facebook, who then distributed the rental info on the Internet through its Beacon system. The plaintiff alleges that this was a violation of the Video Privacy Protection Act, 18 U.S.C. § 2710 (summary).

This is a fascinating glimpse into the types of privacy issues that may arise when companies jump into the "next big thing" -- here, social networking -- without fully considering potential adverse effects. This case will be closely watched by other players in this area (e.g., MySpace), as well as their partner companies.

Technologically Challenged Lawyer Suspended

An attorney was suspended for three months by the Kansas Supreme Court for, among other things, failing to obtain a login name and password to comply with the U.S. Bankruptcy Court's e-filing requirements.¹

The respondent-attorney attempted to file a bankruptcy case by submitting paper pleadings rather than e-filing. The bankruptcy court sent Respondent an order advising that petitions and other pleadings must be filed electronically. The court ordered Respondent to attend the required training, pass the examination, and obtain a login name and password within 30 days. Respondent failed to comply with the order.

Subsequently, Respondent attempted to file another (separate) bankruptcy case. A bankruptcy judge advised Respondent in writing that he was not permitted to file a bankruptcy case using paper pleadings and that all pleadings must be filed electronically.

Respondent not only failed to obtain a log in name and password and failed to file the case to comport with court rules, but also did not return the advanced fee after discharge.

The dicsiplinary Memorandum Opinion is here.

Hat tip to The Legal Profession Blog for this story.

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¹Pursuant to a rule change, the United States Bankruptcy Court required that all pleadings be filed electronically. In order to file electronic pleadings with the bankruptcy court, an attorney must have a login name and password.