DO YOU OWN AN I-PHONE, I-POD, SURFACE, TABLET, KINDLE, NOOK, CELL PHONE AND DIGITAL CAMERA? EACH OF THESE DEVICES IS SUBJECT TO SEARCH WITHOUT SUSPICION BY CUSTOM OFFICIALS
Have you taken a picture of your minor daughter (or son) playing naked in the bathtub, sitting on the toilet, running around in the yard playing in the sprinklers and his/her genital or pubic area can be seen? If so, you run the risk of being accused of sexual exploitation of a child. Ridiculous as it may seem each of these situations resulted in a referral for possession of child pornography for prosecution or a child protection case through the juvenile courts against the parents of the child. Usually dad is the one who takes the pictures. He sends his film in for developing or takes in his computer for repair and the film developer or computer technician sees the photo of the young child naked with private areas visible and makes a referral to the police for possession of child pornography.
ELECTRONIC DEVICES OR CAMERA ON AN
Custom officials can seize and examine any of the above items without reasonable suspicion when you enter the country. They can look at your pictures, examine your laptop, I-Phone, I-Pad, and other devices, take them and hold them for a reasonable period of time to do a thorough search. Federal Courts have ruled custom officials are authorized to search anything you carry across the border without having to justify reasonable suspicion. The first case addressing this issue was a 2008 case of a man returning from the Philippines carrying his laptop. The custom officials demanded he boot up his laptop for them to view its contents. They noticed two folders–one labeled “Kodak Pictures” and another “Kodak Memories.” They took his computer and sent it away to their technicians to do a thorough computer search. Child pornography was observed. He challenged the search on the basis there was no reasonable suspicion presented to justify the seizure and search of his computer. United States v. Arnold, (9th. Cir. 2008) 533 F.3d 1003. He lost. Anything you carry across the border is subject to seizure and search without the necessity of showing a reasonable suspicion for the search or seizure. In a 2013 case, United States v. Cotterman, (9th. 2013) (en banc) 709 F.3d 952, the court reaffirmed its holding in the Arnold case but said if custom officials were going to seize and send off your device for further examination, they needed reasonable suspicion to justify the further examination of the device. Reasonable suspicion is a very low legal standard to meet.
I DON’T HAVE TO WORRY;
I DELETED ANY QUESTIONABLE IMAGES
Many persons are finding out the hard way what you think you have deleted from your computer remains buried in the hard drive. Take your laptop in for repair and a competent technician can view all the images, GIFS, or other pictures, videos, etc., you may think you have deleted. They are required to report you to law enforcement if they believe you possess child pornography.
Your son has pictures on his phone, laptop, or electronic device of he and his girlfriend, who is under the age of 18, engaging in sexual activity. This is child pornography. He has pictures of his under 14 year old girlfriend sexting him pictures of her naked showing very private areas. This also could be considered child porn. Someone in your family intentionally or by mistake looked at some pornography and, after a short time viewing it, realized it showed sexual activity with a minor under the age of 14. They thought they deleted the video, picture or GIF. It probably is not deleted and competent law enforcement technicians will find it.
WHAT TO DO
First of all, impress on one another the importance of never viewing or possessing child pornography. Impress on your children not to capture on film or video sexual activity involving minors. Don’t sext one another if it involves minors. Don’t store old electronic devices that may still contain such images even if the device is no longer functioning. Don’t store pictures or videos of images which show sexual activity of minors. If your spouse believes they may have viewed or captured child pornography, figure out how to get it off your electronic device without taking it to mandatory reporters for repair which, if viewed, needs to be reported. Perhaps replace the device with a clean one. Don’t be taking such devices across the international borders because they are subject to search on the whim of the custom officials. It is not only custom officials you need to worry about. Law enforcement will seize and examine computers, laptops, and any electronic devices they can lawfully seize and examine the contents. Your son and daughter at school may be asked to produce their cell phone/laptop for examination by a school official for texts, emails and photos. These type searches are being upheld by the courts.