“With a conviction for online child exploitation, Stuart Romm is hardly a sympathetic advocate for computer privacy. Still, what happened to Romm when he crossed the border into the United States worries some legal experts. The laptop computer that he carried with him was intensively searched by customs officials. On July 24, the 9th U.S. Circuit Court of Appeals ruled that the search was legal. In U.S. v. Romm, No. 04-10648, the San Francisco-based 9th Circuit ruled that customs officials can seize and search the contents of anyone’s laptop computer, even in the absence of a search warrant or probable cause… ‘What’s dangerous about this opinion is that it pushes the line for searches along the border very far toward one end of the constitutional spectrum,’ says Shaun Martin, a professor at the University of San Diego School of Law. ‘It is one thing to turn on your computer in the airport to make sure it is not a bomb. It is another thing for customs officials to turn on your computer and to read everything you ever wrote and to look at everything you ever downloaded.’ When Romm flew into Seattle-Tacoma International Airport on Feb. 2, 2004, he went through U.S. customs knowing that he recently had used his laptop to find and view child pornography that was posted on the Internet, according to the 9th Circuit opinion. This violated the terms of his probation in Florida, where he had pleaded nolo contendre to charges of promoting sexual performance by a child and child exploitation by means of computer. So Romm deleted the contents of his browser’s cache, thinking this would erase the evidence of his wrongdoing. He was mistaken. His actions had merely deleted the pointers to the cached files — the files themselves remained on the laptop. Using special software, customs officials were able to find 42 images of child pornography on the laptop’s hard drive. These images were subsequently used to convict Romm of knowingly receiving and possessing child pornography in violation of federal law. Romm appealed, but the 9th Circuit upheld the border search and the conviction.” — American Bar Association (US)

It is often the case that an unsavory character becomes the litmus test for civil liberties. People engaged in illicit activities push the limits of a citizen’s basic rights, and for that reason you end up seeing outfits like the ACLU defending sex offenders, racists, and the like.

Certainly that is true in this case. There’s an interesting background to it. Canadian border officials stopped Mr. Romm for standard questioning. When they learned that he had a criminal background, they searched his laptop and discovered kiddie porn sites in his browser’s history. That was enough to send him packing back to the United States, where border agents in Seattle “asked to search his laptop, and Romm agreed.” No doubt he agreed because, though he’d left the sites in his browser history, he’d deleted any child pornography from his machine and emptied his browser’s cache as well. However, as any computer security analyst will tell you, this does not genuinely wipe information from your computer. A border agent used EnCase to conduct a forensic analysis of Mr. Romm’s hard drive, discovered the “deleted” cache images, and the rest is history. Mr. Romm’s goose was cooked.

You could shrug this whole thing off by saying that Mr. Romm was one of those people who “know just enough to be dangerous” — meaning that he knew enough to delete images from his browser’s cache, but he didn’t know enough to utilize a software that would really wipe his hard drive. What you can’t shrug off, however, is that the legal ruling based on his case effectively gives customs agents control of your laptop. The FBI might need a warrant to search your machine, but Homeland Security — which runs the Immigrations and Customs Enforcement division — does not.

The American Bar Association draws out the implications of this. Think you’re cool going through customs with your kiddie porn because you’ve password-protected your machine? Think again. Customs agents can always “keep you in the airport or keep your computer until they can access those files.” One attorney quoted in the article “is aware of at least one instance in which a customs agent asked for an e-mail password so the officer could examine the individual’s e-mail correspondence.” That’s pretty hardcore. The judicial ruling gives such carte blanche to customs agents that the American Bar Association — the Bar, for God’s sake — ends its article by recommending that lawyers keep one laptop at home and use a different one overseas. And if that’s true for lawyers, don’t think it’s going to be any less true for pervs.

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