Rewinding a little, during the original trial of Jammie Thomas, Thomas was fined $222,000 for sharing 24 songs. This is $9,250 per work. Here in the Tenenbaum case, a jury fined Tenenbaum $675,000 for sharing 30 works – that’s $22,500 per work. Tenenbaum got fine nearly 2.5 times Thomas’ fine.

With such a huge difference – let alone Thomas’ later fine of $1.92 Million for sharing 24 songs, it immediately raises the question of what kind of measuring stick is being used for infringement. It’s more likely that the fine is little more than guesswork. Added to this, there’s no distinction between commercial infringement and non-commercial infringement in the United States.

The differences in the fine should make it even more clearer that it is critically important that the plaintiff must show actual damages caused, not to mention have a clear-cut foolproof method of actually gathering evidence against someone legally. As the defence has already argued in the Thomas case, given that a song could be bought for just over a dollar, the damages award is stratospheric compared to actual damages – in other words, if 1 download is 1 lost sale, it’s insane to consider any damages above 14 bucks per work. As of yet, the only thing closest to evidence of damage caused was assumptions and guesswork done by the copyright industry.

How is it constitutional that one person could be fined $222,000 while another person, for a very similar act, be fined over 3 times the amount anyway? Given that the awards are purely subjective, it isn’t hard to see just how fishy the whole system is – especially given that this is well in the territory of non-commercial use.

Of course, there are reasons why some outside the US see the whole legal and political system in the US as little more than a servant to the corporate world. Who knows, for some, this may be another sign of this. Either way, the copyright system is bound to draw international scepticism.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

A report from the New York Times has some interesting comments from the major record labels. Neilson Soundscan reports that CD sales have slumped this year with the top selling album selling less than 3 million albums for the first time since Soundscan reported record sales (17 years).

The news came with some interesting notes including the fact that ticket sales have been going up. The record industry has been wanting a cut of the revenues generated from live tours for about a year now in so-called “360 deals” though the Times report says that this is not the norm for contracts yet.

What could be just as interesting is the comments made by Universal Music’s executive president:

Rio Caraeff, the executive vice president of Universal Music Group’s digital division, eLabs, said other income, like the fees collected when users stream a video online, had become an essential part of the pie. Twenty percent of Rihanna’s revenue, he said, has come from the sale of ring tones.

“We don’t focus anymore on total album sales or the sale of any one particular product as the metric of revenue or success,” Mr. Caraeff said. “We look at the total consolidated revenue from dozens of revenue lines behind a given artist or project, which include digital sales, the physical business, mobile sales and licensing income.”

This could represent an interesting change in attitude since the main arguments the record industry has used for years is that record sales are down because of file-sharing. If record sales are no longer a measure of success, what becomes of the argument that file-sharing is causing a fall in CD sales (though many respected sources have disconnected any correlation between file-sharing and record sales)

All this seems to be highlighting an interesting trend with the major record labels. First, one of the major labels is pushing for campus file-sharing tax, then came word that the RIAA is interested in ending the lawsuit campaign and asking ISPs to disconnect alleged file-sharers, some that at least one ISP is saying that there should be compensation in the process and now this.

Is merely putting a song in a shared folder copyright infringement in the United States? That’s what the Recording Industry Association of America (RIAA) was hoping for, but at seemingly the last possible moment, the precedent that would dictate such has slipped through the RIAAs fingers.

Ray Beckerman’s blog, Recording Industry vs. People, notes that the RIAA has lost the motion for an interlocutory appeal. Such an appeal in this case would have granted the RIAA, essentially, permission to appeal the judge’s decision that suggested that he improperly instructed the jurors during the initial Jammie Thomas case to consider that copyrighted song files in a shared directory was considered illegal. There’s probably no doubt that the RIAA is unhappy with these latest turn of events.

Things seemed to be going the RIAAs way during the trial all the way up to the point where the jury, based on the judge’s instruction that copyrighted songs in a shared directory was considered illegal, fined Jammie Thomas $222,000 for copyright infringement.

Then, almost unexpectedly, the judge had second thoughts on the instruction that more than likely swayed the jurors to find Thomas guilty of copyright infringement. He said that he made a mistake in giving such instructions to the jurors in the first place. The RIAA, sensing a crack in their seemingly solid court victory, argued that the judge did not make an error and that he correctly instructed the jurors in the first place. The judge didn’t seem to buy into the argument and, ultimately, the RIAA then moved to appeal the judge’s decision. That move was just recently denied. It doesn’t appear as though the case is over, but the RIAA seems to have a number of cracks in their side of the case at this point. Clearly, things are, so far, shifting into Thomas’ favour.

Patrick Leahy and Arlen Specter issued an open letter to Susan Schwab today regarding ACTA, a controversial international agreement that has, so far, remained secret to the general public.

“Protecting intellectual property through better international coordination and improved standards of enforcement abroad is a valuable pursuit. We have steadfastly supported funding in the Foreign Operations Appropriations bill to assist foreign countries in combating the piracy of U.S. intellectual property rights. A top priority of ours in this Congress is legislation to provide greater tools and resources for law enforcement to combat intellectual property theft,” the senators wrote, “and to improve coordination of such efforts within the Federal government. We are disappointed that the Administration has been resistant to this effort and has opposed additional enforcement authority, such as civil enforcement in copyright cases where the violation rises to the level of criminal activity.”

The letter (PDF) continues:

We are concerned, however, that the ACTA under consideration will prescribe rules for protection so specifically that it could impede Congress’s ability to make constructive policy changes in the future. Our concern that ACTA, if not drafted with sufficient flexibility, could limit Congress’s ability to make appropriate refinements to intellectual property law in the future is institutional and one that we raised when the United States Senate implemented the US-Peru Free Trade Agreement. It is compounded in this situation by the lack of transparency inherent in trade negotiations and the speed with which the process is moving.

Regarding the potential breadth of ACTA, we strongly urge you not to permit the agreement to address issues of liability for service providers or technological protection measures. The contours of the law and liability exposure in these areas continue to be debated in the courts and in Congress. As technology is not static, Congress must have the ability to tailor the law as developments warrant without concern that a change may run afoul of ACTA.

Documents about ACTA were leaked early on this year which sparked major criticism against the legislation – namely its contents. Just a few months ago, another ACTA leaked on Wikileaks, confirming (as good as a confirmation ever got so far) many of the suspicion around the treaty and what it would do to several countries legal system. Reports indicate that the controversy was sufficient to stall the legislation, though the plans were to have the talks completed by the end of the year still. Last month, over a hundred organizations called for ACTA to be made public. In the United States, calls were so strong to make ACTA public, it sparked a Freedom of Information Act lawsuit against the government from US advocacy organizations.

Hat tip: Public Knowledge

After an unusually long time without announcements, EDRI posted observations of the ‘Freedom, Not Fear’ campaign. The report contains the following:

After last year’s demonstration for democracy and civil rights, which was the largest in Germany in 20 years with over 15 000 participants, protesters in several countries will, for the first time simultaneously, take to the streets to demonstrate for their freedom. Currently, 15 countries have announced their participation in the international action day on 11 October. Such unanimous protests are mainly due to the ongoing shift of politicians to push through negotiations on surveillance and control measures behind closed doors. Among others, the international protest criticizes the planned registration of all air travellers in the EU, the planned delivery of data to the USA, biometric data in EU identification documents, as well as the retention of telecommunication data such as phone connections or a caller’s whereabouts for all 455 million Europeans.

Against this political spiral of interior armament motivated by crime-related dangers, civil society places the call for “Freedom not Fear”. A moratorium for all surveillance activities and the reduction of all mass scale surveillance, as well as an expansion of digital rights are demanded to protect and strengthen civil liberties. In addition, activists call for an independent review of every single planned or existing surveillance and control measure in terms of its effectiveness and undesired side-effects.

In the run-up to this action day, the German Work Group on Data Retention (”Arbeitskreis Vorratsdatenspeicherung”) calls for participation in the Munich demonstration “Freiheit Weiß-Blau – Stoppt den Überwachungswahn” on 20 September 2008, which targets the restrictions of the right to free assembly and other surveillance measures in the state of Bavaria. In addition, the OneWebDay on 22 September 2008, will serve as a means for further mobilisation for the “Freedom not Fear” action day.

The “Working Group” has been largely credited for starting the “Freedom, Not Fear” campaigns. We reported on the German campaign where 20,000 citizens in the country held protests on a national level in the country in several cities. At the time, we posted the following:

As already mentioned, there are more protests expected, but this time, all across Europe. As Michel Blumenstein put it, “This is just the beginning” The plan is to hold protests across Europe on the 20th of September. Information on the plans is currently available on the websites wiki. Presently, demonstrations are expected in Berlin, but the hope is likely that more European cities will also join in the day of protest. Contact information and ideas are also available on the Wiki.

Indeed, at the time, there was only a demonstration expected in Berlin, Germany when the campaign started to rally people throughout Europe. When Michel said, “This is just the beginning”, he was not kidding. A look on the Wiki today reveals that not only are protests expected in 30 of the 50 countries in Europe, but 5 countries outside of Europe including Washington in the United States.

It may seem strange, at first, that there would be a protest in the United States when all this was started by the database society and surveillance issues in Europe, but people in the United States are all too familiar with warrantless wiretapping being passed in to law just a few months ago. Last we heard, the American Civil Liberties Union and the EFF were to sue the government for not upholding the constitution and the rights of American citizens. With a lot of distaste for the legislation, it wouldn’t be a surprise if the protest spread across the United States as well.

Perhapse the surprise at this point is why Canada isn’t on the list since they have been affected by privacy related issues thanks to the Patriot Act in the US. One example is the FBI’s access to one provinces medical files back in 2004. A more recent example was highlighted by the Privacy Commissioner of Canada where the Olympics is very likely ushering in new surveillance measures through the use of CCTV camera’s in public places – something widely used and despised in Britain. CCTV isn’t just for the Olympics either. It was only last year that it was proposed to put CCTV cameras in Toronto’s transit systems. In 2005, the Liberal government of Canada introduced the infamous surveillance bill. In spite of all this, many Canadians may feel that their privacy isn’t under threat outside of what goes into the United States mainly because the biggest threat, Bill C-74, died on the order-paper and that there hasn’t been much actually happening in B.C. regarding city-wide surveillance yet. Even if the Sony Rootkit fiasco was seemingly resolved in Canada which included illegal surveillance technologies included on the CD’s, it doesn’t mean there won’t be any in the future either. After all, we did report on the last tie warrantless wiretapping hit Canada (not even two months ago)

The international, and what is starting to be at this point, worldwide, day of action, is on October 11th. This is more than enough time for other countries to join in on the action before the deadline. From the looks of things, the movement against overreaching surveillance issues isn’t done growing yet.

It’s been quite a spectacle. ISPs being under fire for privacy related issues with its own customers has frazzled more than a few nerves in the past couple of months. While the case in Germany targeted specific people the cases in Britain, Canada and the US all showed that people were being spied on en-mass for financial gain at the expense of user privacy.

While the cases such as the Canadian CIPPIC one, the infamous British Phorm trials, and even the US Charter case which

There was already word that there is some dissent on the FCC ruling over throttling BitTorrent, but commentary from CNET seems to point out that there is much more going on at the FCC then originally thought.

Apparently, after the FCC issued a press release on the matter (DOC, PDF), Comcast basically cried foul over it – no fines, just a measly press release.

The interesting part is the idea that prioritizing Voice Over IP is actually perfectly fine – so does BitTorrent need to be left alone? You can read the comments yourself:

Critics correctly note that Congress still has not given the FCC explicit authority to decide Internet policy. Even as the FCC issued its decision, Chairman Kevin Martin went on record writing that while Comcast had no right to prioritize Internet traffic, it’s fine to prioritize voice over IP:

We do not tell providers how to manage their networks. They might choose, for instance, to prioritize voice-over-IP calls. In analyzing whether Comcast violated federal policy when it blocked access to certain applications, we conduct a fact-specific inquiry into whether the management practice they used was reasonable. Based on many reasons, including the arbitrary nature of the blocking, the lack of relation to times of congestion or size of files, and the manner in which they hid their conduct from their subscribers, we conclude it was not.

We do not limit providers’ efforts to stop congestion. We do say providers should disclose what they are doing to consumers.

So it’s OK to put individual data packets under a magnifying glass? But in its group statement–which Martin presumably signed off on–the FCC approvingly cited MIT professor David Reed, a respected Internet notable, who believes “that “(n)either Deep Packet Inspection nor RST Injection”–Comcast uses both to manage its network–”are acceptable behavior.”

This takes Emerson’s apercu that a foolish consistency is the hobgoblin of little minds to an extreme. Maybe the private sector can figure things out without confusing itself over regulation from bureaucrats. But they first need clear rules of the road to follow. Otherwise, expect more of the same.

It seems there is a lot of confusion about this ruling. It may be possible that the theory from the FCC is that ISPs can do something to give priority to a packet, but it’s not OK to take priority away from a packet. Put it in another way, it’s fine to add carpool lanes, but it’s unfair to put speed limits on the other lanes. Either way, one may wonder if Comcasts punishment is simply some bad publicity and a subliminal note saying they can keep doing what they are doing. With some suggesting that the FCC can’t do much with little legal authority (a fact that contributed to the downfall of the broadcast flag originally), there isn’t much that can be done at this point.

It seems to be the trend for US authorities and lawmakers – act first, legalize later. A little over a month ago, the EFF was demanding an investigation for suspicionless laptop searches at the border. Now comes word that the Department of Homeland Security has made laptop searches and iPod searches (aka digital frisking) part of border security policy.

It’s all found in the 3 page policy (PDF – hat tip Slashdot for the link) which contains the following:

This policy provides guidance to U.S Customs and Border Protection (CBP) Officers, Border Patrol Agents, Air and Marine Agents, Internal Affairs Agents, and any other official of CBP authorized to conduct border searches (for purposes of this policy, all such officers and agents are hereinafter referred to as “officers”) regarding the border search of information contained in documents and electronic devices. More specifically, this policy sets forth the legal and policy guidelines within which officers may search, review, retain, and share certain information possessed by individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border. This policy governs border search authority only; nothing in this policy limits the authority of CBP to act pursuant to other authorities such as a warrant or a search incident to arrest.

In other words, they don’t need a warrant or some form of suspicion in order to conduct searches. They can conduct the searches arbitrarily if they so desire. So what are they looking for?

CBP is responsible for ensuring compliance with customs, immigration, and other Federal laws at the border. To that end, officers may examine documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices. These examinations are part of CBP’s long-standing practice and are essential to uncovering vital law enforcement information. For example, examinations of documents and electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary
instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.

So buried in all of that is copyright and trademark related issues. So for example, if your iPod contains a song that was not available on iTunes, it could very easily be considered copyright infringement. the policy continues withthis:

Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.

Translation and Decryption. Officers may encounter information in documents or electronic devices that is in a foreign language and/or encrypted. To assist CBP in determining the meaning of such information, CBP may seek translation and/or decryption assistance from other Federal agencies or entities. Officers may seek such assistance absent individualized suspicion. Requests for translation and decryption assistance shall be documented.

It is also noted that when the data has been received and analyzed by an “officer”, it’s only then that the concept of suspicion kicks in. If, say, a file on ones laptop was “suspicious”, then enforcement can take place on that individual. How exactly this protects individuals from fourth amendment rights which guards against unlawful search and seizure is just about anyones guess, but judging by the way this policy was framed, it’s unlikely that it adequately does when property has been seized without suspicion.

US media picked up on the story (via BoingBoing) describing the new policy with the following:

Federal agents may take a traveler’s laptop or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

The report notes that Senator Russell Feingold (Democrat from Wisconsin) said that he would introduce legislation that would require suspicion before a digital search can even start (as opposed to afterwards as noted by the DHS policy) the report also contains this:

“They’re saying they can rifle through all the information in a traveler’s laptop without having a smidgen of evidence that the traveler is breaking the law,” said Greg Nojeim, senior counsel at the Center for Democracy and Technology. Notably, he said, the policies “don’t establish any criteria for whose computer can be searched.”

Customs Deputy Commissioner Jayson P. Ahern said the efforts “do not infringe on Americans’ privacy.” In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had “plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant” to prevent drugs and other contraband from entering the country.

Canadian media outlet CBC also picked up on the story. Unsurprisingly, Canadians are not amused by the new developments.

charles_montreal commented, “oh, boy. Parents…you better watch your kids bringing laptops on your holidays to the States. With all the music and movies kids download these days, the whole family may end up in the clink.”

DanielGoodchild says, “My last trip to the U.S. was just a couple of weeks ago – and I do mean my LAST trip.”

What’s interesting is that the intrusive laptop searches case dates back to February while the policy was dated July 16, almost half a year later. It makes one wonder if the previous laptop searches were completely illegal, even under DHS guidelines.

There are many concerns surrounding this outside of copyright related issues. For instance, what about attorney-client confidentiality? What about confidential notes for reporters?

It also makes one wonder if the United States can really afford this new searching procedure in the face of near record breaking national debt (refreshing the page will update the clock)

There is currently no word yet on how groups like EFF and the ACLU will respond on the new development.

Copyright and surveillance laws have been the subject of much discussion in the last few months. While some are more specifically copyright related pieces and others are more surveillance and privacy related, they all could affect peoples digital lives. For some, it’s hard to imagine that copyright laws could get much worse in the United States, but that is exactly what could be happening if the latest proposals actually make it to law.

The EFF has no doubt spent the week analyzing the “Enforcement of Intellectual Property Rights Act of 2008″ and what it could mean for the average American.

The first point the EFF makes is that the proposal would give the Attorney General brand new powers to file copyright infringement lawsuits against average people on the record labels behalf. There’s little wonder why the EFF calls this aspect disturbing since it would effectively mean that tax-payers would then be funding the RIAAs lawsuit campaign that has financially devastated thousands of citizens. The argument is that the “milder” cases could be covered by the Attorney General while the RIAA targets larger operations. “This new provision would allow the AG to sidestep that high burden of proof,” the EFF comments in their analysis, “a burden that gives the average citizen an important measure of protection from the overwhelming power of the government.”

The EFF further analyzed the proposal with the following:

The bill also seeks to create an Intellectual Property Enforcement Coordinator position in the Executive Office, with an advisory committee consisting of members from various government departments and agencies. Given the extraordinary budget pressures lawmakers now face, it is shocking that they would consider funding a new layer of federal bureaucracy. In fact, the DoJ itself has spoken out against similar Congressional efforts to rearrange its priorities with bureaucratic meddling.

There’s more: another provision creates new categories of infringement at the border, suggesting that individuals need the permission of copyright holders to bring copies of music or movies with them overseas or even through the United States. If the bill is passed, something as simple as taking your iPod to Mexico could be considered an infringement of the copyright owners’ distribution right. The bill also proposes to lengthen the list of items that can be impounded as part of a civil copyright infringement suit, while broadening the list of articles that can be seized and destroyed by the government. (Meanwhile, the Anti-Counterfeiting Trade Agreement (ACTA) is being negotiated in secret by a number of countries, pairing this unprecedented public threat with a potentially catastrophic secret one.)

Whether or not you believe the entertainment industry’s claims about the extent of the piracy problem, there is no reason the American taxpayer should be picking up Hollywood’s legal costs when while movie studios are celebrating record box office returns and record-breaking single-title revenues.

ACTA has obviously been in the copyright discussions internationally for some time now. Last week, we reported that the ACTA discussions would continue this week in Australia; as per usual, in secret for the most part. It was discussed partially in Europe after we broke the story when it was first leaked onto the internet. We also highlighted how the current proposed copyright legislation contains a legislative back-door for ACTA.

Perhaps one of the unique aspects that is difficult to grasp is that ACTA transcends borders. It’s not simply some law being made up in some far away land for some far away land. It’s an international proposal that many countries will be pressured to adopt. It’s unlike the FRA law that just affects Swedish citizens and people accessing Sweden through the internet. It isn’t just Bill C-61 that just affects Canadians. This isn’t just the DMCA that the copyright industry frequently pretends that it applies in countries outside the US as well as inside the US. This is an international law proposal that will affect many people around the world.

Nevertheless, the US IP enforcement law is definitely a piece of legislation to watch for. If there is anything that the proposal proves already, it’s that the copyright industry operating in the US will never be fully satisfied with the laws and will keep demanding more no matter what the cost.

One of the ideas behind ACTA (Anti-Counterfeiting Trade Agreement) is the idea that you can have your iPod, laptop, or any other digital device searched, confiscated and destroyed based on suspicion alone. It might not come as a surprise that the country that proposed this kind of activity is also practicing it on their own citizens – but it has digital rights activists deeply concerned regardless.

EFF Senior Staff Attorney Lee Tien testified at a senate hearing on such search and seizures. There is one instance where a search without a warrant is permitted under US law. This type of searching without a warrant is permitted at airports for any possible dangerous items that could threaten the safety of passengers. The kind of things being searched have nothing to do with physical objects – but rather the ones and zeros on a digital device. The kind of content that can be retrieved on a laptop can range from something as simple as a spider solitaire high score or banking information left in a browsers web history.

Those who support such search and seizure might suggest that such private information would be carefully protected under suspicionless searches. Perhaps the JetBlue privacy breach of 2002-2005 where 5 million peoples personal information was probably illegally handed over to a contractor of the Department of Defense might have a few proponents to such search and seizures thinking twice for a moment. It was a case the ACLU watched but it was thrown out because the passengers couldn’t prove actual damage occurred according to a judge. One hopes that next time, such information won’t be damaging – much like what could happen if British managers start handing out personal information in a bid to increase profits.

Clearly, private information isn’t what all is targeted today even though identity theft has become a major problem. ACTA would allow countries to conduct suspicionless searches for the purpose of preventing the movement of pirated content which includes seizure and destruction of affected property. Of course, in one case in Germany, the police simply used such seizures to better the IT department situation.

So what is at stake in this particular case? Plenty just from reading the first few paragraphs in Lee’s testimony. A few highlights:

What is your deepest secret? Do you have any embarrassing health conditions? Have you ever had a family crisis? What are the details of your finances? Do you have trade secrets or confidential information related to your work? The answers to questions like these are often contained on laptops and similar devices. Any reasonable person would say that Americans have a legitimate expectation of privacy in such information. Indeed, in this April appearance before the full Committee, Department of Homeland Security (”DHS”) Secretary Chrtoff agreed that “there are absolutely privacy concerns” in searching laptop computers at the border.

This protection is not limited to the contents of a person’s writings or communications; it extends to his or her identity and the identity of his or her correspondents. In the modern context, it includes knowledge about a person’s interests, the websites he or she reads, and the electronic files that he or she downloads. “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm ‘n, 514 U.S. 334, 357 (1995) (citation omitted). Thus, both freedom of expression and freedom of assocation are at stake as well, because arbitrary government access to these devices will chill speech as people question whether what they say and think (and to whom) is proper.

The EFF then cites their case against the U.S. Customs and Border Protection. The EFF sued the Department of Homeland Security back in February of this year over laptop searches were conducted by U.S. Customs where the reason all the websites visited were copied was because the person in question was a “security concern”.

The EFF also mentions another case known as United States v. Arnold, 523 F.3d 941 (9th Cir. 2008). From the EFF information page on the case:

On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus brief in the case, arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between “routine” suspicionless searches and invasive “non-routine” searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops. The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

The EFF also cites a judges opinion (page 4) from a case known as United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) where Chief Justice Rehnquist wrote, “Balanced against the sovereign’s interests at the border are the Fourth Amendment rights of respondent… [who] was entitled to be free from unreasonable search and seizure.” Using this citation, the EFF argues that border searches should be reasonable. Among other things, the EFF argues that a search of a laptop without suspicion is unreasonable because personal information on such a device can be extremely revealing about an individual.

Obviously, at a time when trade agreements between countries involve the idea that someone can suspect someone of copyright infringement as a basis to seize content, the border digital searches couldn’t become more of an important debate – and the United States isn’t alone. Currently in Canada, such questions are being raised during a time when copyright legislation has been tabled. It’s a legislation that has become a hot button debate. Conveniently enough, just yesterday, we reported just three days ago about how the, what is known as, Canadian DMCA seems to have implemented an ACTA backdoor which would allow something like ACTA to take place in Canada.

In other words, such searches have become an international question and not just for people living within the United States. One must wonder, if the idea of searching someone’s laptop doesn’t fly in the United States, could Canada be pressured even more to conduct such searches as a way to circumvent any, to proponents of such searches, unfavorable decisions?

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