Recent Decisions

The courts have been busy. Here are some recent decisions of note:

U.S. v. Arnold. This decision comes from the Ninth Circuit Court of Appeals and involves a border search of Mr. Arnold's laptop. This is an issue we have covered previously (here and here) and seems to be of growing concern to the general public. The question presented to the Court was whether Customs and Border Protection may examine the electronic contents of an arriving passenger's laptop without reasonable suspicion that it contains evidence of a crime.

When Mr. Arnold arrived at LAX from the Philippines, CBP selected him for secondary review and asked him to open his luggage. There is no reason given for his selection. CBP then asked Mr. Arnold to turn on his computer, ostensibly to see if it worked. When the computer had booted up, a second CBP officer reviewed photographs stored on the computer and found an image of two nude women. Note that there is nothing in the decision to indicate that these women were underage or that the photo was legally obscene; it was just two nude women. With that, the computer and Mr. Arnold were turned over to Immigration and Customs Enforcement agents. After several hours of questioning and a thorough examination of the computer, ICE found numerous images depicting child pornography.

At his trial, Arnold's lawyers moved to suppress evidence from the computer arguing that the search violated the Fourth Amendment because CBP had no reasonable grounds to believe the computer contained evidence of a crime. Arnold's argument was based on the unique nature of computer data. First, because the storage capacity of a computer is so large, Arnold argued that the search was analogous to searching a person's house. Second, because the computer can be used to record deeply personal information, it acts as an extension of an individual's brain and is entitled to strict protection. The trial court agreed and suppressed the evidence. The government appealed.

The Ninth Circuit began its analysis with the oft-cited premise that searches made at the border are reasonably simply by virtue of the fact that they occur at the border. This, obviously, does not bode well for Mr. Arnold. However, the Court also noted that CBP may not engage in searches without reasonable suspicion where the search infringes on the interests of human dignity and privacy. Generally, that means body cavity searches, but it may extend to other invasive searches. Searches of property might require suspicion if they are particularly destructive or offensive.

From this, the Ninth Circuit held that the trial court's sliding scale of intrusiveness was improper. CBP need not conduct searches in the least restrictive means available and there is no distinction between "routine" and "non-routine" border searches. Consequently, CBP does not need reasonable suspicion to search a laptop (or other electronic storage media) at the border. Further, a laptop, despite its storage capacity is not a home in part because it is mobile and in part because one cannot live in a laptop. Lastly, the Court held that there was nothing particularly offensive about the means of the search nor were Mr. Arnold's First Amendment rights in the material sufficiently violated to require an exception to the border search doctrine.

On to something more likely of direct relevance: classification. In Airflow Tech. v. U.S., the Court of Appeals for the Federal Circuit reversed a decision of the Court of International Trade concerning the classification of straining cloth. The decision is, frankly, not that interesting. However, along the way the CAFC made a couple important general points that Customs and importers should keep in mind.

First, the Court said that when faced with clear language in the Harmonized Tariff Schedules, contradictory language in the Explanatory Notes is irrelevant. Specifically, the Court said this: "when the language of the tariff provision is unambiguous and the Explanatory Notes contradictory, 'we do not afford [the Explanatory Notes] any weight.' Michael Simon Design, Inc. v. United States, 501 F.3d 1303, 1307 (Fed. Cir. 2007)." So, if the World Customs Organization wants to limit a tariff item, it needs to draft the language to accomplish that limitation. Putting broad language in the tariff and then a limitation in the Explanatory Notes will not accomplish that.

Another interesting point in the case has to do with WCO opinions. When faced with a contradictory WCO opinion, the Federal Circuit held, "We are similarly not bound by the WCO opinion, see Cummins Inc. v. United States, 454 F.3d 1361, 1366 (Fed. Cir. 2006), and, to the extent that its interpretation of subheading 5911.40.00 differs from ours, we find it unpersuasive."

These are the kind of fundamental points that it is important to keep in mind when drafting protests and ruling requests and, when all else fails, when arguing in Court.

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