NYT on Criminal Procedure and Electronic Evidence:
In today's New York Times, Adam Liptak has an interesting column on some of the Fourth and Fifth Amendment issues that have arisen recently in criminal cases involving electronic evidence and computers. He covers several cases I have blogged about here at the VC, including In re Boucher and United States v. Arnold. Worth checking out.
Dave N (mail):
The column (in which OK humbly fails to tell us that is cited as an expert) ends this way:

There are all sorts of lessons in these cases. One is that the border seems be a privacy-free zone. A second is that encryption programs work. A third is that you should keep your password to yourself. And the most important, as my wife keeps telling me, is that you should leave your laptop at home.
An interesting summary, though it does lead me to wonder what Adam Liptak has on his laptop.
1.7.2008 2:52pm
Are the government border search powers limited to finding contraband, or are they plenary independent of motivation? Can the government search a journalist's laptop at the border with the hope of finding who leaked the identity of a CIA agent?
1.7.2008 3:07pm
Owen Hutchins (mail):

An interesting summary, though it does lead me to wonder what Adam Liptak has on his laptop.

Because clearly anyone concerned about privacy must have something to hide.
1.7.2008 8:45pm
Dave N (mail):
I was actually joking--and being a bit snarky, riffing of the fact that his wife told him to leave it at home. But no, I am not one who thinks that if a person asserts a right, that person is automatically guilty
1.7.2008 9:28pm
Jonathan Abolins (mail) (www):
For what it's worth, the Oct 2006 New York Times article, At U.S. Borders, Laptops Have No Right to Privacy, gives some background information on border searches of computers. It mentions computers can be subject to confiscation and to "forensic analysis". (What constitutes "forensic analysis" raises many questions of its own.)

I am curious what happens if the border check official sees a directory or file that seems to be encrypted and demanded that the person "opens it for inspection". A rough physical analogy might be that of a locked box within a suitcase opened for inspection.

What happens if the person cannot unlock the encrypted files for inspection because she was not the one who encrypted the files? Such a claim seems to have been made in the UK in a case involving the RIPA decyrption orders.
1.8.2008 1:40pm
THJC (mail):
What if your computer has a start-up password? Can you refuse to turn it on?
1.9.2008 4:04am