On October 21st, 2008, I gave a lecture at Hastings Law School in San Francisco to first year law students. My lecture was first about the concept of competition in law school and second about analyzing a hypothetical case that the students would have to write about for class. You might think that me not being an actual lawyer was some kind of drawback in leading a discussion about the law, but the professor who asked me to speak didn't think so.
I heard that the students at Hastings were acting overly competitive, to the point that it was hurting their development. I explained my background, my business and math degrees from MIT, that I am a fake scientist, a fake psychologist, a fake lawyer, and a real game designer. In addition to that, I am a competitor, and I'm knowledgeable about competition and which types of people do well in competitions.
Whether the arena is political debate, legal argument, or video games, the people who win tend to have things in common. There's a lot I could say about the things that winners do during competition. They get into the head of the opponent and predict their moves. They know when to attack, when to defend, when to stall. They know when to look for "critical points" to blow open a match (or a debate) when they are losing, and when to avoid them if they are winning. There is a lot to say about the strategy of competition, but that is not what I focused on with the students.
It's the other side of competition that their professor and I thought they needed to hear about: continuous self-improvement. When you enter any competition, be it legal or a video game, you hope that the rules are fair to all sides. But the things that don't have to be even--aren't supposed to be even--are the skills, abilities, knowledge, and experience you bring with you to the competition. By improving and improving, eventually winning becomes incidental. Just stop by and win easily, if you are that far ahead of everyone else.
If I look through a crystal ball to the future and discover that you end up being great--as great as Gandhi--how did you get there? You turn out to be a great fighter for the constitution, action figures are made of you, children want to grow up to be you. How did you get there? Was it by putting down other students? By trying to give other students disadvantages so that your own mediocrity appears slightly better? No, that's ridiculous. You got there by developing an excellence in yourself regardless of what anyone else is doing.
Ortiz vs. Sirlin
I remember feeling the full effects of this against fighting game player Ricky Ortiz. Ricky played a certain game, I played a different game. Then a third game came out (Capcom vs. SNK) that we both played. I was older, more experienced, and better than Ricky. I understood Ricky's advantages (better dexterity, better reaction time, and better ability at judging precise distances), and I played around them. Ricky was good, but not a real threat to me.
Then, months later, I entered a tournament in this game. I faced Ricky in the finals. Finals matches are usually best 3 out of 5 games. Ricky won 2 games, and he won them decisively. He crushed me. Onlookers yelled out congratulations to Ricky he won the tournament, but I said, "wait a minute, I thought it was best 3 out of 5." The tournament organizer then informed us that this particular tournament was 2 out 3 finals. Then Ricky said to me that if I thought it was 3 out of 5, he would play more games. I almost couldn't believe it because he had every right to declare victory on the spot, but I took his offer. Ricky then crushed me one more game and won the tournament.
Ricky was demonstrating that it didn't even matter what went on in the game. He brought to the table an excellence that I simply could not compete with. It had nothing to do with putting me down, or giving me disadvantages. It had everything to do with Ricky's amazing development as a competitor. You [the students at Hastings law school] need to develop that kind of excellence in yourselves, I said.
There's one more Street Fighter story I thought they had to hear before getting to the topic of the law. When I played Street Fighter at the MIT arcade, most players tried to keep secrets from each other about techniques and tricks. I disagreed with this mindset and I did not keep secrets. Instead, I told my competitors everything I knew so that we could all practice against everything. Why? Because the MIT arcade was not the REAL competition. It was the training ground. When I went to play at an international tournament in Japan, that was a REAL competition. The only way to be prepared for something like that is to develop your skills as much as you can in your training ground.
This is the reason that law students should not hide their research from each other. Human nature might compel you to hoard the good secrets you found, but that is the path of trying to be slightly less mediocre than your training partners. Instead, know that a high tide raises all boats and that when law students get together, share research, and discuss cases, they reach a level of understanding of those cases that is far deeper than would be possible without the discussion.
And now it's time to demonstrate that.
The Case of the Woman Who Was Searched
Here is a pdf describing the case and the requirements of the legal memo the students had to write about the case. Read it to know what the rest of the article is talking about.
The case at hand is about the Fourth Amendment rights of Phoebe Thorne. It's a fictional case that is representative of and very similar to real cases. In this case, Ms. Thorne lands in San Francisco on a flight from Bogota, Columbia. She is questioned, searched, detained, and ultimately held long enough to have a "monitored bowel movement" to see if she passes any drugs. She did in fact pass a large number of pellets containing heroine. Her case challenges the validity of various parts of her search.
The first and most important thing to understand here is why it's important that we care about the rights of Ms. Thorne, a known drug trafficer. In the law, the ends do not justify the means. You can't just say that because she did have drugs, it's ok for the government to treat her any way they wanted, ignoring her Fourth Amendment rights. There are rules for when searches are legal and when they are not, and those rules protect the innocent as well as the guilty.
You might only care about the rights of innocent people to be free of unreasonable search and seizure. You might think that a case where a person turned out to be guilty is not that important in the grand scheme of civil rights. The trouble is, only guilty people can really bring these cases to court. When guilty people are searched unfairly, they have standing to sue, real incentive to sue, and there are reasonable remedies they can seek (for example, "don't put me in jail.") Innocent people could have their Fourth Amendment rights voilated routinely, but the courts can't stop that without a case. So cases exactly like Ms. Thorne's are what set the precedent for how we will ALL be treated. You need to care about her rights because her rights are YOUR rights.
Miss Thorne's Claims
Thorne moved to suppress the heroine evidence, claiming:
- Customs inspectors improperly examined the electronic contents of her laptop computer;
- Customs inspectors lacked the minimal suspicion required to conduct a pat-down search;
- Customs inspectors lacked reasonable suspicion to detain her for a monitored bowel movement; and
- The length of her detention was unreasonable.
Thorne definitely should have claimed that customs inspectors lacked the "real suspicion" required to conduct a strip search, but in this case she did not. The most likely reason for this is a bad decision on the part of her legal counsel. Legal counselors make mistakes, and we can only consider the actual claims above.
There are different requirements the government needs to do different kinds of searches. A policeman who wants to search a car parked on a street needs probable cause. Some searches require a warrant. It depends on what's being searched, the privacy expectation of the person being searched, and other factors. There is a balance between allowing law enforcement to do its job and the Fourth Amendment rights of citizens to be free of unreasonable searches.
That said, the balance of rights shifts to favor the government if the search takes place at a border. The country needs to "protect the integrity of its borders" and so it has much more authority to conduct searches there than in the interior of the country. Or to be a little more honest about the current state of affairs in the United States, you do not really have Fourth Amendment rights at a border or within 100 miles of a border.
Order of Events for Thorne
In order to get our ideas straight let's chart out what happened to Ms. Thorne, first the short, short version:
- Initial questioning (by Bronson)
- Secondary questioning (by Cloma) which includes laptop search
- Pat-down search
- Strip search
- More questioning (by Foster)
- Accusation of smuggling, followed by detention for monitored bowel movement.
What level of suspicion does the government need to escalate each of these levels?
For initial questioning, the government needs nothing. At a border especially, inspectors can ask you routine questions without any suspicion. They also do not need any suspicion at all to pass you off to another officer for secondary questioning. Nor do they need any suspicion to search your luggage.
A pat-down, however, requires "minimal suspicion." A strip search requires "real suspicion." Detaining Thorne for 9 hours or more for a monitored bowel movement requires even more than that, I assume, but I don't know the exact term because I'm only a fake lawyer.
Let's chart out what happened to Thorne again, this time noting what the inspectors learned at each step.
Initial Questioning (by Bronson)
- She's from Bogota, Columbia, a known source country of illegal drugs
- She appeared nervous (hands shaking)
- She purchased her ticket one week in advance, using cash
- She recently took multiple trips to the US from Columbia.
Secondary Questioning (by Cloma)
- Laptop search reveals a "to do" file, dated, saying that Thorne plans to buy anti-diarrhea meds
- Thorne said she visited Los Angelas in February (4 months previous), but her passport says San Diego. When asked if she had visited San Diego, she said maybe but she didn't remember the date.
- She has no friends or family in the US
- She doesn't know which of two possible Hilton Hotels she will stay at
- She doesn't have reservations, claiming she figured an American colleague was handling this
That said, there were also some things in her favor:
- She has an employment ID card
- She said she's going to a conference at the Moscone Center which surely exists, because it was so easy for investigators to look that up, that you know they would have told us it was not a real conference if that were the case.
- She knew the names and addresses of several Bay Area architecture firms with ties to South America
- She did not appear nervous. (Actually, Cloma first says she doesn't remember if Thorne appeared nervous, then later says that Thorne did NOT appear nervous.)
Pat-down search (this requires minimal suspicion, do we have that?)
- granola bar (irrelevant)
- receipt for ear plugs (irrelevant)
- undated receipt for prescription anti-diahrrea medication
- no contraband items
Strip search (real suspicion needed, do we have that?)
- Thorne's lawyer forgot to protest this point, unfortunately, so we can't argue this point. This might have been her best chance to claim an unreasonable search.
Another Interview (by Foster)
- Same questions, no new information
- Foster is an experienced senior officer, so her instinct here is worth something, but still requires evidence
Prolonged detainment for monitored bowel movement.
Step by Step Analysis
This seems pretty open-and-shut at first glance. Thorne is suspicious and if we can't search her, who can we search, anyway? Let's look closely at the progression.
Remember, the government needs nothing at all to go to the second level of questioning, and we have to admit that Bronson found more than nothing. A lot of people come from Bogota, but that does at least raise some concern. We are supposed to consider all the facts in totality, so that fact taken along with several others might be cause for concern. That she appeared nervous might mean something, or might not. That she purchased her ticket a week in advance and used cash might be explained somehow, but that is also consistent with how drug traffickers act.
That she took "multiple" trips to the US recently raises some concerns, not so much about Ms. Thorne, but instead about whoever wrote this case. If she took 97 trips, you know good and well that this case would say "97 times." But "multiple" sounds like it's being used in an intentionally deceptive way. Why leave open the possibility that it was only 3 times if it really was 9 times? I will have to assume that the writer is hiding something here and that the actual number is 3, which is not really that suspicious on its own.
In any event, the government can definitely pass her on to the next level of questioning. What did Inspector Cloma find in secondary questioning? First, Cloma searched Thorne's laptop. Was the laptop search ok?
At first glance, we are forced to conclude that yes, it's ok because of United States vs. Arnold. In this case, Arnold's laptop is searched FOR NO REASON AT ALL at a border, and is found to have illegal child pornography on it. The case rules that it is legal to search a laptop FOR NO REASON AT ALL at a border. Because the border officials in Ms. Thorne's case had slightly more than nothing to go on, it means their search is legal. Let's come back to that later, and for now say that the laptop search is allowed.
The laptop search revealed the to-do list file that mentioned buying anti-diarrhea medication. Because the file is dated and labeled "sf" (for San Francisco) we have no doubt that this medication has to do with this particular trip, and that Ms. Thorne herself plans to get this medication. Though it's not illegal, it's admittedly very consistent with a drug trafficker's actions.
What about Thorne remembering her previous trip wrong, confusing LA with San Diego? LA and San Diego are not that far from each other, so it's possible to imagine she flew into one and drove to the other, or that she got them mixed up because she's from another country anyway. That said, it's also unlikely that there could have been a direct flight from Bogota to San Diego without passing through LA, so the facts of the case themselves are a bit confusing. It is somewhat suspicious, though, that Thorne mixed up San Diego and LA.
That she has no friends or family in the US isn't really that suspicious at all, though. Why would she? She's here on business for the architecture conference. Friends and family are not the same thing as colleagues, and she presumably does have colleagues because she said she expected that they would handle her hotel reservations. This is somewhat bolstered by her naming several local Bay Area architecture firms and their addresses. The incredibly obvious question here would have been, "Who are your colleagues?" followed by "How do you plan to contact them?" It's a glaring omission in my eyes that the inspectors did not ask this, or that the answer is not included in the case's fact pattern. It's highly relevant because it goes to the heart of the question of whether she really was going to have a hotel or not. Were the investigators incompetent in forgetting to ask this? Is there some reason this information was suppressed or that both sides stipulated to drop it? Is the case writer trying to advocate one side? I don't know, but this raises doubt about the investigator's side of the story.
Speaking of that, Inspector Cloma should get her own story straight as to whether Thorne appeared nervous or whether Cloma did not remember if Thorne appeared nervous. Cloma's contradictory statement on this is confusing, at the least.
Was this enough for a pat-down search? Later, I'll look at other cases for precedent to determine this. For now, if it was ok to do a pat-down search, what did the government learn from it? Only the undated prescription receipt for anti-diahrrea medication. Undated means it could be very old, who knows? Prescription means a doctor allowed it. Why get prescription medication when over-the-counter medication is available? Possibly because it needs to be stronger medication to conceal drugs. Or possibly because she really has a problem and saw a doctor.
That undated receipt is the only evidence that the government gained here. The government needs much more suspicion to do a strip search than a pat-down, so it's somewhat troubling they moved to the strip search level with very little to go on.
Similarly, the government needs even an higher level of suspicion to hold someone against their will for hours for a monitored bowel movement. What new suspicions did the government have between the strip search and the prolonged detention? Only Inspector Foster's hunch. Foster asked the same questions as had already been asked and got no new information. When Foster asked about a) Thorne's lack of friends and family in the US, b) the cash purchase of the airline ticket, and c) the receipt or diarrhea meds, Thorne responded simply that she had not committed any crime. That's a good line because I would have said the same thing. None of those three things are crimes and if I were in that situation, but I was not smuggling drugs, I would have the same disdain for these questions.
Foster also asked about the names of Thorne's architect colleagues from her previous San Diego and LA trips (again, why not the colleagues from the current trip??) and Thorne said the inspector's questioning made her nervous and forgetful. If you had any idea what it's like to be questioned in this way, you would probably realize that it is, in fact, reasonable that an innocent person would be rattled and scared at this point.
There are other cases involving monitored bowel movements of suspected drug smugglers at borders. In each of the cases below, the drug smuggler was found guilty and the searches were deemed to be legal. We can use these as a guide to whether Thorne's treatment was fair.
- From Bogota, Columbia
- Wearing a bulky overcoat, unlike everyone else on the plane
- Only had one piece of luggage and a purse
Sent to secondary questioning...
- Purchased ticket in cash, same day as the flight
- Numerous trips to the US
- Says she's a portrait photographer when asked about her camera, she can only describe it as "a very big Cannon that uses 35mm film."
- She only has a small pocket camera with her.
- She says she's there for her sister's wedding, but later says her sister is already married and that she's there to help with her sister's kids (what??)
- Did not have her sister's phone number and her sister wasn't there to pick her up (what??)
Pat-down search, partial strip search. Note that she was pretty damned suspicious and that her story was much worse than Thorne's.
- From Nigeria
- Said he was going to Sacramento (from San Francisco Airport) but didn't really know how, perhaps by train or bus.
- Said he has only been to Nigeria once since moving to the US in early 1980s, yet his passport said he had been back 2 more times. When questioned about this, he changed his story saying yes, 2 more times.
- He's unemployed, but somehow could afford the flights that cost between $1,500 and $1,800 each.
- He really has two passports (what??)
- The other passport says he made 3 more trips to the US since 1989
- He explained one trip in October was to celebrate Christmas (which makes no sense)
- Another passenger, Amechi, said he did not know Oba, yet Amechi's address book contained Oba's name and address.
- Amechi was carrying anti-diarrhea medication.
- Oba said he felt constipated, during questioning
Oba is much, much more suspicious than Thorne.
- From Bogota
- Made 8 recent trips to Miami and LA
- She speaks no English (only Spanish) and has no friends or family in the US
- Claims she came to buy things for her husband's store in Bogota to sell. She would get these things at places such as JC Penney's and K-mart (kind of strange, but ok.)
- Had $5,000 cash on her and no billfold.
- Had no reservations for a hotel, said she planned to stay at a Holiday Inn (well, maybe)
- The only clothes in her luggage were four changes of "cold weather clothing" that weren't really appropriate for the climate
- She had no shoes other than the high heels she was wearing
pat-down and strip search
Montoya is pretty suspicious too. Her story is strange, her luggage is strange, and her plan to pull all that off without speaking English is strange. She is more suspicious than Thorne.
- Arrived in Guam from Hawaii
- Looked "dazed and glassy eyed" according to customs officials
- Had difficulty responding to questions
- Bought an $800 ticket for a trip of less than 24 hours that he claimed was a "vacation"
- The first question the second officer asked was "How was your trip." Vance responded "Three days." This is strange because it's not an answer at all, and because Vance's trip was to be only one day.
- Vance was wearing two sets of underwear, even though it was very hot
- Vance had a suspicious bulge in his crotch area
Vance was clearly on drugs and about as suspicious as a person could possibly be--far more suspicious than Thorne.
Back to Thorne
While Thorne's case looked bad at first, the only precedents I could find involved a lot more suspicion than the officials had with Thorne. To be fair, it's possible that a) there are other cases I did not find that demonstrate similar facts to Thorne's case and were deemed ok, and b) that even though Thorne was less suspicious than the people in the other cases above, perhaps it's still ok to search her.
That said, Thorne has a case. We should have a very high standard indeed before holding people against their will for a dozen hours or more while monitoring their bowel movements. It was my intention to show the students that by looking closely, what appeared at first to be an open-and-shut case is actually not so clear after all.
I then asked the students how important the laptop was to the government's case. If the laptop search was out, how much would that help Thorne? Students were split on this, one side saying that she was suspicious enough already. The other side said that the laptop search revealed a key piece of evidence because that's what specifically tied the anti-diarrhea medication to Thorne herself, on that exact day, in that exact city. They thought losing the laptop evidence could affect the whole case. Personally, I'm not sure. What I am sure about is that we need to get that laptop search thrown out, no matter what, for the sake of our own constitutional rights.
The problem is that the US vs. Arnold case is very clear in it's ruling on this matter: at a border, officials need NO REASON to search your laptop.
That case sounds a little fishy, doesn't it? The Arnold case actually says that border officials can search ANY property with no cause at all, and that the only time they need to have any level of suspicion for a search is if it's a search of the human body. The natural, foreseeable consequence of this ruling is that in the future, when we have more technology and more border patrol officers to search us all, we will all be searched at borders. That means the government is free to stop each and every one of us, to read our e-mail, review our pornography, read our love letters and poems, take note of our web surfing habits, and peruse our company trade secrets.
As a side note, company trade secrets are an actual legal concept. Companies don't register trade secrets with anyone (then they wouldn't be secret), but the power of trade secrets lies in the steps you take to actually keep them secret. It's not even really feasible to have trade secrets at all if they can always be searched by border officials without cause. Maybe you think you'll be clever by mailing your data to your destination to avoid a search, but currently, international mail is subject to these same rules. All international mail can also be searched for no reason at all.
Trade secrets are important, but pale in comparison to the larger issue of the gross invasion of privacy and dignity that we all suffer when our laptop computers are searched. As Mr. Arnold himself explains (not the Judge in the case, but the actual Mr. Arnold whose laptop was searched), laptops are not like other containers. They are not like paper bags, and not like cars. The storage capacity of laptops is so great that searching them is more similar to searching a home, or "the human mind."
Mr. Arnold himself explains this in clear, understandable language. Laptops can (and often do) contain an enormous amount of information about our daily lives, business affairs, and personal habits and secrets. While searching a paper bag is not likely to uncover an enormous amount of material that violates our dignity, searching a laptop is fairly likely to do so. It's full of expressive material, which also raises First Amendment questions.
Judge Diarmuid O'Scannlain's written opinion then goes on to explain that Arnold is wrong and that laptops are not different from other kinds of storage containers, that storage size does not matter when comparing containers, and that the entire notion of needing more suspicion to do more invasive searches applies only to humans and not to any type of property whatsoever.
To make these points, Judge O'Scannlain uses a confusing, vague morass of non-logic. He cites cases in support of his points that don't actually support his points at all. Here are some choice quotes, with my comments:
Supreme Court's holding in Flores-Montano, by
distinguishing between one's privacy interest in a vehicle
compared to a laptop. However, this attempt to distinguish
Flores-Montano is off the mark. The Supreme Court's
analysis determining what protection to give a vehicle was
not based on the unique characteristics of vehicles with
respect to other property, but was based on the fact that a
vehicle, as a piece of property, simply does not implicate
the same “dignity and privacy” concerns as “highly
intrusive searches of the person.” Flores-Montano, 541
U.S. at 152, 124 S.Ct. 1582.
That's a lie. The statement in Flores-Montano really *IS* about the unique characteristic of vehicles and it really doesn't lump all possible pieces of property into the same category. No one reading that case could possibly think that it meant to speak about all possible kinds of property, from paper bags to laptops that contain vast personal information. It's is intellectually dishonest to claim that Flores-Montano applies to all possible containers, when it's clearly, specifically about vehicles and the properties of vehicles.
Whatever “particularly offensive manner” might mean,
this search certainly does not meet that test. Arnold has
failed to distinguish how the search of his laptop and its
electronic contents is logically any different from the
suspicionless border searches of travelers' luggage that the
Supreme Court and we have allowed.
Actually, Arnold explained this in great detail. Searching a laptop is more similar to searching a house or the mind than it is similar to searching a suitcase.
With respect to these searches, the Supreme Court has
refused to draw distinctions between containers of
information and contraband with respect to their quality or
nature for purposes of determining the appropriate level of
Fourth Amendment protection. Arnold's analogy to a
search of a home based on a laptop's storage capacity is
without merit. The Supreme Court has expressly rejected
applying the Fourth Amendment protections afforded to
homes to property which is “capable of functioning as a
home ” simply due to its size, or, distinguishing between
“ ‘worthy’ and ‘unworthy’ containers.” California v.
Carney, 471 U.S. 386, 393-94, 105 S.Ct. 2066, 85 L.Ed.2d
In Carney, the court was talking about the distinction between a "motor home" and an "ordinary sedan." For that comparison, the justices did not want to count size and quality of the container. They are worried about judgment calls about which is which (motor home vs. ordinary sedan) and would certainly not be worried about distinguishing a laptop computer from either a mobile home or sedan. In fact, the justices in that case might very well use the storage capacity of a laptop as a way to distinguish it from an ordinary sedan, if asked.
Also, they specifically mention that a mobile home is a good place to hide drugs, and that influenced their decision. Is a laptop a good place to hide drugs? If it is, customs officials can search the physical space inside a laptop, but that is radically different from searching the digital contents, which definitely do not contain drugs.
Moreover, case law does not support a finding that a
search which occurs in an otherwise ordinary manner, is
“particularly offensive” simply due to the storage capacity
of the object being searched. See California v. Acevedo,
500 U.S. 565, 576, 111 S.Ct. 1982, 114 L.Ed.2d 619
(1991) (refusing to find that “looking inside a closed
container” when already properly searching a car was
unreasonable when the Court had previously found
“destroying the interior of an automobile” to be reasonable
in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69
L.Ed. 543 (1925)).
The Acevedo case says nothing whatsoever about searches involving things with extremely large storage capacities. It involves the search of a car and a closed container in the car the might have drugs, neither of which are of the same nature as a laptop computer. The above paragraph uses this case to to say that it's not "particularly offensive" to search a high capacity storage device that is likely to contain embarrassing and personal writings, pictures, videos, etc. The case says nothing about this either way, and shows intellectual dishonesty to pretend this case has any relevance to this point.
Thorne's case looks clear at first, but on closer inspection, she does have a case. We need to care about her case because her rights are our rights. Right now, our rights at borders are less than they've ever been in the history of our country, and that's frightening. More frightening is imagining a world created by US vs. Arnold in which all our personal data, including love life and company secrets, are routinely searched by the government at borders under the deplorable cloak of "protecting the integrity of the country." I don't need that kind of protection--what I need is for my civil liberties to be protected. Luckily, the Arnold case is poorly written, poorly cited, poorly argued, and highly vulnerable to attack. You can do your part, too.
At the beginning of this lecture, I talked about winning competitions by bringing excellence to the table. I've done my best to do that here, in this very legal discussion, by doing all this research. This is kind of analysis is what you [the Hastings law school students] need to do.
Finally, I want to say that the reason I did this research is because I'm honestly interested in it. The founders of our country knew exactly what it was like to have the government perform unreasonable searches and that is why they gave us the Fourth Amendment. If they were here today, there is no way in the world they would be ok with granting the government unlimited power to search all possessions at a border with no suspicion whatsoever. Our freedoms hang in the balance right now, and I am passionately interested in making sure that we regain some of the freedoms that the Fourth Amendment says we should have. I hope you [Hastings law school students] have that same kind of passion and that you will let it drive you to learn your subject to a degree of mastery that will serve you well in all your future competitions.
--Fake Professor Sirlin