As far as I've been able to tell, Michael Arnold did not seem like a very sympathetic defendant. It seems clear from the court documents that he was traveling to the Philippines to have sex with minors.

Nevertheless, one of the foundations of a free society is the idea that citizens are presumed to be innocent and the state leaves innocent people alone unless it has some reason to be suspicious of them. It has long been understood that in a free society the government must not rifle through people's personal papers and correspondence in search of anything that is in any way incriminating.

An accident of technology has placed most modern people's papers and correspondence in their hands at border crossings, a place where people's belongings have been subject to search for at least 100 years. How the government reacts to this paradox affects whether or not we can think of our society as a free one, and unfortunately they've made the wrong decision.

Did they have to make that decision in order to convict Arnold? Apparently not.

In their successful attempt to get the Supreme Court to ignore Arnold's argument about the basis for the search of this computer, the Government argued that it did have a reason to suspect Arnold:

Those facts raised a reasonable suspicion that petitioner's computer might contain illegal photographs of minors, such that petitioner would not prevail even under his own legal position.

But this argument cuts both directions - if the government had a reason to suspect Arnold, why have it out in court that they don't need one? Why attempt to cut down one of the pillars of our free society when it isn't necessary in order to convict this defendant?

Of course, the case over Arnold is happening in a greater context, and that context is absolute national hysteria over sex crimes. The right to be secure against unreasonable searches of ones personal papers is not the only threat to liberty that exists in the midst of this hysteria. Stories about teenagers being placed on permanent sex offender registries right next to child molesters because they engaged in consensual sex are frankly shocking. So is the idea that people might be rick rolled into a conviction with extreme prison sentences and mandatory minimums.

In the midst of this the only real hope you have is that most of these cases are like Arnold's - that prosecutors are using these tools only to go after people who really are likely to hurt children. But that sort of rationalization isn't very comforting because one has a hard time believing that its true across the board. There are ... [ Read More (0.2k in body) ]