Border Agents Can Search Laptops Without Cause, Appeals Court Rules

[Casa Grande]

http://blog.wired.com/27bstroke6/2008/04/border-agents-c.html

Federal agents at the border do not need any reason to search through travelers' laptops, cell phones or digital cameras for evidence of crimes, a federal appeals court ruled Monday, extending the government's power to look through belongings like suitcases at the border to electronics.

The unanimous three-judge decision reverses a lower court finding that digital devices were "an extension of our own memory" and thus too personal to allow the government to search them without cause. Instead, the earlier ruling said, Customs agents would need some reasonable and articulable suspicion a crime had occurred in order to search a traveler's laptop.

On appeal, the government argued that was too high a standard, infringing upon its right to keep the country safe and enforce laws. Civil rights groups, joined by business traveler groups, weighed in, defending the lower court ruling.

The 9th U.S. Circuit Court of Appeals sided with the government, finding that the so-called border exception to the Fourth Amendment's prohibition on unreasonable searches applied not just to suitcases and papers, but also to electronics.

The ruling (.pdf) came in a case where customs agents searched the laptop of Michael Arnold who was returning from the Philippines. They found images they believed to be child pornography, seized the laptop and later arrested him. While the lower court ruling excluded from trial the pictures of young boys the government says it found on the hard drive, they now can be used again.

The panel chose to follow the reasoning of a similar case from the 4th Circuit, known as Ickes (.pdf), which held that the government did not need any reason to search a vehicle crossing the border.

The 9th's ruling did not, however, clarify whether a traveler has to help the government search his computer, by providing the login information, or what would happen when the government decided to search a laptop with encrypted data on the drive. The defendant in the case can appeal the decision to the U.S. Supreme Court, but the Court is unlikely to take up an issue that two separate appeals courts have agreed upon.

In the meantime, travelers should be aware that anything on their mobile devices can be searched by government agents, who may also seize the devices and keep them for weeks or months. When in doubt, think about whether online storage or encryption might be tools you should use to prevent the feds from rummaging through your journal, your company's confidential business plans or naked pictures of you and your-of-age partner in adult fun.

The case is Arnold vs. USA.

Voni
   sMiling

[LandCruisers4Life]

 

[West Egg]

The headline's reference to "Border Agents" is a little misleading.  The rules are different for searches and seizures at the border itself (or at functional equivalents of the border, such as international airports), than for searches and seizures at interior checkpoints (like the ones around Del Rio, the park, etc.).  The ruling the article discusses would apply only at ports of entry, not at the checkpoints.  Although Border Patrol agents need no cause at all to stop a vehicle at an interior checkpoint, they need some level of suspicion to actually conduct a search.

[SHANEA]

they need some level of suspicion to actually conduct a search.

See "dog jerk" - the "habit" of forcing the drug sniffing canine to jerk

[presidio]

they need some level of suspicion to actually conduct a search.

See "dog jerk" - the "habit" of forcing the drug sniffing canine to jerk

Where on earth do you come up with this stuff? Do you regularly scan yourself to insure no alien tracking devices have been implanted while you were unconscious?

[RichardM]

The latest news:

http://www.nextgov.com/nextgov/ng_20080624_3037.php

http://www.chron.com/disp/story.mpl/headline/nation/5857054.html

[badknees]

they need some level of suspicion to actually conduct a search.

See "dog jerk" - the "habit" of forcing the drug sniffing canine to jerk

Where on earth do you come up with this stuff? Do you regularly scan yourself to insure no alien tracking devices have been implanted while you were unconscious?

Believe it or not, most people are not out to get you.

Paranoia is a disturbed thought process characterized by excessive anxiety or fear, often to the point of irrationality and delusion. Paranoid thinking typically includes persecutory beliefs concerning a perceived threat. In the original Greek, παράνοια (paranoia) simply means madness (para = outside; nous = mind) and, historically, this characterization was used to describe any delusional state

[SHANEA]

Believe it or not, most people are not out to get you.

You are right.  That's why I'm sitting here with my tin foil hat on sitting in a room with copper wire embedded in the walls and on the outside of the house - as the men with dark glasses talking into their shirt sleeves patrol the neighborhood in black cars and suburbans with black helicopters circling overhead...   

[badknees]

Believe it or not, most people are not out to get you.

You are right.  That's why I'm sitting here with my tin foil hat on sitting in a room with copper wire embedded in the walls and on the outside of the house - as the men with dark glasses talking into their shirt sleeves patrol the neighborhood in black cars and suburbans with black helicopters circling overhead...   

Might I suggest a bout of heavy drinking may be in order?

[presidio]

Believe it or not, most people are not out to get you.

I agree and that is most definitely the case. But just to reassure those that are uncertain...if they are out to get you, they will get you before you know what happened. If you're paranoid, keep looking over your shoulder.

[Roy]

Just a little more fuel for the fire:

http://www.baltimoresun.com/business/investing/bal-bz.ml.laptops29jun29,0,3324276.story

[SHANEA]

Thanks for posting.

[RichardM]

The latest:

Travelers' Laptops May Be Detained At Border
No Suspicion Required Under DHS Policies

By Ellen Nakashima
Washington Post Staff Writer
Friday, August 1, 2008; Page A01

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.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

"The policies . . . are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

DHS officials said that the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

Civil liberties and business travel groups have pressed the government to disclose its procedures as an increasing number of international travelers have reported that their laptops, cellphones and other digital devices have been taken -- for months, in at least one case -- and their contents examined.

The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and analyze information." This may take place "absent individualized suspicion."

The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cell phones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "

Reasonable measures must be taken to protect business information and attorney-client privileged material, the policies say, but there is no specific mention of the handling of personal data such as medical and financial records.

When a review is completed and no probable cause exists to keep the information, any copies of the data must be destroyed. Copies sent to non-federal entities must be returned to DHS. But the documents specify that there is no limitation on authorities keeping written notes or reports about the materials.

"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.

Homeland Security Secretary Michael Chertoff wrote in an opinion piece published last month in USA Today that "the most dangerous contraband is often contained in laptop computers or other electronic devices." Searches have uncovered "violent jihadist materials" as well as images of child pornography, he wrote.

With about 400 million travelers entering the country each year, "as a practical matter, travelers only go to secondary [for a more thorough examination] when there is some level of suspicion," Chertoff wrote. "Yet legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."

In April, the Ninth Circuit U.S. Court of Appeals in San Francisco upheld the government's power to conduct searches of an international traveler's laptop without suspicion of wrongdoing. The Customs policy can be viewed at: http://www.cbp.gov/linkhandler/cgov/travel/admissability/search_authority.ctt/search_authority.pdf

[Undertaker]

And I just thought they was we the people, if you are really concerned download all financial or other data you wish hidden to another means of storage while you travel and upload when you get back. While I carry a computer while traveling any data I wish to save is sent to my office desktop (verifying delivery), backing up at the office and dumping data from the laptop. If they (us) wish to search my office or home computer they (us) are welcome with a court order. Personally, and I travel a lot, I have never had a problem with any law enforcement personnel, and my travel computer is a back up. Problem solved now lets just go the the bend and enjoy.

[presidio]

And I just thought they was we the people, if you are really concerned download all financial or other data you wish hidden to another means of storage while you travel and upload when you get back. While I carry a computer while traveling any data I wish to save is sent to my office desktop (verifying delivery), backing up at the office and dumping data from the laptop. If they (us) wish to search my office or home computer they (us) are welcome with a court order.

Unless you use (and know how to effectively use) disk wiping software (and at the highest levels of bit-level data destruction) there are ample vestiges of what you have done after deleting files from your desktop.

There are very powerful analytical recovery tools and you can be sure investigative agencies will have them. If you have fully utilized a true security wiping routine there will be a low probability of recovery. However, if your wipe has been at a level to thwart hackers and no one else, what you may actually accomplish is creating and heightening suspicions about what it is you were attempting to hide.

Basically, there are three things being looked for in electronic media

1) Evidence of terrorism threats. This of course is the current hot topic and the term 'terrorism' is used to justify pretty much any invasion of privacy. The larger umbrella here is that all criminal activity can fall under this since you never know where 'terror' will hide or what the file name might be.
2) Evidence of financial irregularities. This would relate to drugs, terrorism, unreported gains (money laundering, etc.) and suspicious movement of large sums.
3) Child pornography.

Under the premise that you can't identify terrorists, financial thieves or pornographers simply by looking at people and asking if they are one or more of the above, EVERYONE is a suspect.

This already is the premise under which vehicle searches have been done at the border for the last 100 years. As a practical matter, there is no way every person, vehicle or electronic device can be fully examined, therefore other methods are used to winnow down the suspect pool. This is called 'profiling' though no agency will ever again admit they do it....it is given a more benign appellation such as 'threat assessment', 'targeted enforcement' and other such wordsmithing. But, it IS profiling, and despite the hue and cry of the ACLU, it is a valid enforcement tool as long as it is not strictly based on race/gender/geography (however, those attributes cannot be completely ignored...and aren't). So, given that you have no rights at the border, the easiest way to deal with this issue is to give no cause to probe further.

However, this does not mean we should be sheep and willingly surrender our rights. I have nothing to hide, but I will never agree to a voluntary search to prove that. Of course, at the border, they aren't asking you for cooperation, they are compelling it. Elsewhere, if you decline to cooperate and an agency decides to detain you, they better have something better as a reason than empty minutes to fill in their schedule.