January 1, 2007

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The Shape Of Things

No new site design yet, because I forgot that I don't have access to a scanner while at my parent's house. But, I will be posting my Top Albums Of 2006 list today. Last year's list was epic, this year's is epic-er. The Top Movies list will come, as usual, in a month or so once I've had a chance to watch all the movies that only get released to select festivals and audiences during the calendar year of their award eligibility. Moving on...

2007 is a nicer number than 2006. Have you ever thought about the numerology of joke and storytelling? With some jokes, I find myself having to cite a number. For instance, not that this will incite so much as a giggle, but if I were to say, "I spent about two hundred and seventy three million, one hundred and forty-six hours over the last two weeks writing a legal research paper," that would be a joke dependent on the number I used. In many of those jokes, the humor is dependent on the number chosen. If I were to say, instead, "I spent about a million hours..." it would change the entire character of the joke. I'm never very deliberate about this practice when telling jokes verbally, but I'm extremely deliberate about which numbers I choose when writing jokes. When I worked on The Slant, for instance, we'd sometimes spend twenty or thirty minutes debating whether we should jokingly claim that our annual budget is seven dollars or nine. Anyway, 2007 is a much more exciting number than 2006.

Best things I did in 2006

  1. While at EFF this summer, I sued Barney the Purple Dinosaur. The suit was on behalf of a guy who had posted a parody of Barney on the web, and Barney's lawyers kept sending him threatening letters. So we sued seeking a declaratory judgment of noninfringement of copyright and trademark. It was my case, and I did all the research, interacted with the client, and wrote the draft of the complaint that ended up, with minimal changes, being filed. Barney's owners settled the case with a covenant not to sue our client and a $5000 cash settlement. So my legal record is currently 1-0. Woo-hoo!

  2. I just finished a monster legal research paper that I spent more time on than any other school assignment I've ever done. I could have turned it into a thesis-length paper without doing any additional research. I'm actually damn proud of how it turned out. The paper was titled, "Suspicionless Border Searches Of Computer Files: An Unjustified Intrusion," but carried the alternate title, "Feds Are In Ur Laptop, Searching Ur P0rnz." If you want to know anything about border searches of computer files, just let me know. At this point, I'm probably one of the nation's foremost authorities on the subject.

  3. I got a summer associateship. It may not seem to you like getting a summer job is all that great of an accomplishment. If that's the case, you're probably not a law student. The amount of effort that went into the interviewing proccess was immense.

  4. I found a great house in which to live for my last two years of law school. This semester has been good there.

  5. I saw a whole lot of America. I visited six National Parks and several National Monuments. I also lived in San Francisco for three months.

  6. I improved my culinary knowledge and skills. I love cooking.


Worst things I did in 2006:

  1. I failed to complete a draft of an amicus brief that I had really wanted to write. I let down a few EFF staffers this summer by spending a week or so on it and not managing to generate anything worth keeping.

  2. You know that monster paper I just finished? Well, it was due several days before I turned it in.

  3. I sent a stupid email to a mailing list. But the list was much larger than I thought it was. It turned out to have hundreds of people on it, both students and professionals. As usual when I make mistakes, I was trying to make a joke, and it ended up making a pretty poor impression on a lot of people.

  4. I posted something making fun of someone else, who now apparently hates me. At the time of the posting, I thought it was completely justified. After a while, I realized that it was not, and I took it down.

  5. I drank too much at one particular happy hour. It resulted in a lot of mean-spirited derision, reminding me of the value of temperance.

  6. I utterly failed to maintain contact with any college friends unless they did all the work. Totally inexcusable. I didn't even visit some of my best friends who live in Philadelphia (only a couple hours' drive away--and I have a car).

  7. The frequency of my blogging dropped dramatically after the end of Spring semester. I hope to remedy that this year, starting with this post.

  8. Decided to teach a Kaplan LSAT Prep course. Horrible decision. It took so much time to prep that stuff every week, and I made less from teaching that whole course than I'll make in three days this summer.

Posted at January 1, 2007 7:43 AM | Comments (5)


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if i were making such a list (and i might, since it's a cheap and easy blog post), i would most certainly include marking a one-year anniversary with a significant other (though i know since you've had many of these, it isn't as big of an accomplishment for you).

now, granted, i don't know if that would fall in the "good" or "bad" column...i suppose it would just depend on the day?

Posted by: jeanette at January 1, 2007 11:56 AM


I am actually curious about these border searches. Maybe you can post an overvue for us?

Welcome back.

Posted by: Pagan Marbury at January 1, 2007 1:06 PM



Should have said "overview". Blame hangover.

Posted by: Pagan Marbury at January 1, 2007 1:16 PM


An overview... hmm...

So the Fourth Amendment protects against unreasonable searches and seizures. Warrantless searches are per se unreasonable, but there are certain exceptions. Those exceptions include things like consent searches, searches incident to arrest, exigent circumstances, as well as border searches.

The border search doctrine holds that the nation's interest in regulating the flux of people and things through its borders is so great that it is necessary to tilt the balance of liberty versus security more toward the government at borders. And so the Supreme Court has held that border searches are reasonable simply by virtue of the fact that occur at the border. That means they don't need any articulable suspicion in order to stop you and search you and your belongings. For Fourth Amendment purposes, an international airport is the functional equivalent of a border.

But there are limits even on the border search authority: if a customs or border agent does have any reasonable or articulable reason to suspect you, he may only conduct routine searches. My paper asks the question whether an in-depth search through someone's computer files is a routine or a non-routine search.

Routineness is a term of art, and has little to do with the common definition. Routineness is a measure of how intrusive the search is on the dignity and privacy interests of the subject. But the only cases in which courts have consistently held searches to be non-routine, regardless of the other circumstances, have been strip searches and body cavity searches (and for the most part, involuntary x-ray searches). So in order for a search to be considered non-routine and therefore requiring of reasonable suspicion, it must be so intrusive that it implicates the dignity and privacy interests of the individual to the same degree as a strip search or body cavity search.

Only one court has ruled on a case that actually required them to decide whether a search of computer files was routine, and they correctly held that it was not. United States v. Arnold, 454 F. Supp. 2d 999 (C.D.Cal. 2006). But every other case in which the issue has come up has been resolved on other grounds: because the customs agents had reasonable suspicion, the court didn't have to decide whether the search was routine. But that didn't stop them from speculating in dicta that the search would have been routine. In my opinion, they were wrong and Arnold was right. And Arnold was right for all the right reasons as well:

"While not physically intrusive as in the case of a strip or body cavity search, the search of one's private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person. This is because electronic storage devices function as an extension of our own memory. They are capable of storing our thoughts, ranging from the most whimsical to the most profound." Arnold, 454 F. Supp. 2d at 1000.

In my paper I analyzed all the current law available on the subject, and then I argued that border searches of computer files are so intrusive as to be non-routine, and should require reasonable suspicion. The reasons were many, but primarily, electronic contraband does not fit the justifications of the border search doctrine, border searches of computer files are totally ineffective, individuals have a much greater expectation of privacy in their computer files, and the intrusiveness of suspicionless border searches of computer files substantially outweighs the boon they provide to law enforcement.

If you're still interested, email me (david@barzelay.net) and I'll send you the paper, in all its glory.

Posted by: Barzelay at January 1, 2007 3:59 PM


That would be cool- pagan.marbury@gmail.com

Posted by: Pagan Marbury at January 2, 2007 6:34 PM

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