Lawyers are not perfect. Even AUSAs and USAs -- useful term??? :D -- are not. (My statement is not intended to be be read as a commentary on prior posts, as the assertion herein is certainly not such a commentary.)

The discussion started with the TSA personnel looking through the laptop. Although, I am not sure of the legality of them looking through your files without a warrant, I can tell you that the laptop has to be turned on and it has to show functionality. Why? A low level bomb can be hidden in a laptop. Plastic explosives can be hidden in the battery packs of the computer and sometimes the x-ray machine cannot tell the difference. That is why the laptops sometimes are being wiped with the round tissue that is chemically treated to turn color when plastic explosive residues are found. On the ground it will have the enough punch to blow me up and put a two foot hole in the ground. In the air, placed in the middle of plane, especially around the exit seats, where the fuel tanks are, it can vaporize the plane.

So, although some of the people who do the searches do push the limits, their job is to make sure that you get back on the ground safely so you can argue some more about what civil liberties they have infringed. Happy flying!!!!!

We must not be reading the same thread, because it's got nothing to do with the TSA - it's all about a Customs officer's fishing expedition by browsing the OP's computer files.

That's been covered in this thread. At the border, there's no need for a warrant for a search.

Customs wasn't looking for a bomb.

Anyway, the rest of your post is at odds with the way the TSA works. SOP is for the TSA to call the police/bomb squad whenever it suspects an explosive, not to turn on electonics to see if they go "boom."

I'm speechless.

And I stand by my analysis.

A bomb could still be hidden in a functioning laptop.

Regardless, turning it on to show functionality and snooping around at the files on the laptop are two different things.

As mentioned above, we're talking about customs, not the TSA.

Regardless, I hardly doubt that having "immoral materials" - even a lot of it - is going to bring down an airliner.

What do you think about pamphlets advocating the overthrow of the US government? They are also specifically banned by 19 USC 1305.

I nominate GUWonder for FT understatement of the year!! :D

I went through the experience at Canadian Customs a month.

The officer made me log in to Windows and then did a quick search for pictures, with me present.

He didn't notice the linux partition nor my encrypted directory (empty at the time). Changing the file extensions would have screwed up his search too.

They managed to catch a child pornographer the week before with this basic search. Amazing.

I filed an incident report with our security department when I got back.

What about them? Sedition laws have been around forever and are constitutional. Courts have always distinguished between speech as expression and speech as conduct. There are a whole range of laws that restrict speech-as-conduct, ranging from publication of the sailing times of troop ships, to defamation, to unfair competition laws.

Speech that is "immoral," but not otherwise illegal (because, e.g., it constitutes copyright infringement, obscenity, defamation, etc.) is what is known in Constitutional jurisprudence as "pure speech." Pure speech can only be regulated when the regulation is content-neutral, the least restrictive possible, and is done to further a compelling state interest (all of these are legal terms of art). Seizure of expressive material on the ground that it is "immoral" doesn't comport with the Constitutional test established for government regulation of speech and, of course, the non-legal-term-of-art "immoral" is impermissibly vague.

Ah, I see. And, don't worry, I wasn't asking if you agree with their sentiment...just your opinion of their constitutionality. :)

I'm focused solely on the "immorality" ban contained in the statute. My objection to it is solely, and exclusively, Constitutional in character.

"Immorality" as a standard sure invites a void for vagueness challenge.

There are some interesting points in this thread.
 

Thank you, MSY-MSP, for your very helpful Post #57 above. Even with a plethora of password-protected files, I was obviously far too blasé about the potential waiver of the attorney-client privilege (not knowing whether the inquirer took similar precautions). You've given me some good ideas for interrogs, :) and I'll be sending you a PM about your official disclosure limitation form.

Kremmen and GUWonder have some helpful thoughts about minimizing content on a laptop and transmitting via encrypted e-mail (though that is like sending a postcard viewable by any ISP or intelligence agency with superb cryptologic capabilities) or removable hard drives, respectively. Some find steganography useful. ;) I got a bit of training from the DoJ CCIPS (Computer Crime and Intellectual Property Section) as an AUSA, but have never called a CART examiner as a witness.

I don't disagree with your constitutional analysis, PTravel, as a general matter. I was just pointing out, however, that reasonableness of a customs search under the Fourth Amendment is practically unlimited at the border. You are free to cite some First Amendment cases defining the outer limits of such inspections if it is that important to you, but border searches by the sovereign were a long-standing practice at the time of the Constitution and not significantly limited by it. I think we are talking past each other, and would both like the other to be our "temporary law clerk." :)

I asked the person giving the ITAR seminar if there was such a thing as a carnet for ITAR information and he claimed there is not. Once your laptop with the ITAR information leaves the country, it's immaterial whether or not you bring it back, you've already exported the information.

There are some interesting Ninth Circuit drug cases about whether flights or voyages between two points in the U.S. that cross international waters, such as California to Hawaii, are subject to warrantless customs inspections, as well as similar flights between Hawaii and Guam -- the latter complicated because it is a territory. I seem to recall that flights between Florida and New York were treated differently, at least before a Ninth Circuit en banc decision.

I've never had a First Amendment customs case. The CNMI controls its own customs borders, see 48 U.S.C. § 1801 note, as does Guam.