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Court: 4th Amendment Applies At Border, Password Protected Files Not Suspicious
An anonymous reader sends this Techdirt report on a welcome ruling from the 9th Circuit Court of Appeals:
""Here's a surprise ruling. For many years we've written about how troubling it is that Homeland Security agents are able to search the contents of electronic devices, such as computers and phones at the border, without any reason. The 4th Amendment only allows reasonable searches, usually with a warrant. But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a "border search," for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw no reason to change this policy. Well, now they might have to. In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border, that agents do need to recognize there's an expectation of privacy, and cannot do a search without reason. Furthermore, they noted that merely encrypting a file with a password is not enough to trigger suspicion."
If you cant host it securely online, then mail several MicroSD cards to your destination first to avoid the harassment by the TSA.
Note: you can easily get a Micro SD through airport security without them questioning you, I forgot about one in my pocket and they did not even see it with the Naked scanners.
Do not look at laser with remaining good eye.
About time the courts refute the absurdity of the state security paranoia.
If you are attempting to smuggle in drugs and they catch you at the border, you still get arrested and charged with a crime. It's nice to see the court side in favor of liberty for a change.
Let's see how long this lasts - it is the 9th Circuit, after all...
the 9th circuit is to the left of most courts, so there's a good chance that this will be overturned.
Now if we could get the Supreme Court to roll back their validation of DHS's declaration that the "border" actually extends 100 miles inland from the actual border. Half the population of the USA lives within this extended "border zone".
None of the circuit courts have been over-rulled by the Supreme Court as much as the 9th circuit. They make some really wacky decisions.
9th Circuit is the most liberal, it has a good chance of being overturned or modified by SCOTUS.
The Bill of Rights are more about denying the government power to: rather then allowing it the power to impugn upon the inherent rights of the people . Misunderstanding of that simple fact has led to many constitutionally dubious laws and regulations. Without clear reasons, the government should not be impeding a citizen's free and anonymous travel.
Suspiscious???
Reuters - In a multi-agency action described by Homeland Security as "necessary for the public good", the United States Ninth Circuit Court was raided by U.S. Marshalls. All members of the judiciary were handcuffed and taken away for processing as "enemy combatants". A White House spokesman declined comment, other than to note the judges were being transported to Guantanamo Bay.
#DeleteChrome
Sanity prevails. How uncommon, and how good for it to occur. I'll have to read the details of the case that made it this far up the chain. Will this circuit court ruling have repercussions and applications outside of its jurisdiction, or is the rest of the country on its own still? IANAL, BIYAAL, WYCTC? (but if you are a lawyer, would you care to comment?)
The SCOTUS will soon overturn this because of the following reasons:
1) Terrorism
2) Child pornography
3) Drugs
Carry on, citizens!
>But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply.
If I shoot the border guard then the US laws don't apply?
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
Read up on the Terry Doctrine. You can be stopped and searched any time, all you need to do is behave suspiciously.
Wouldn't the Supreme Court have to rule for this to apply? Couldn't the DHS just accept this ruling and not appeal, thus keeping the status quo because the border is a national issue and this hasn't been ruled upon by a body with national jurisdiction?
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
The 9th circuit is overruled more only because they hear more cases than the other courts. Proportionally to the amount of cases heard, other courts have been overrulled more in the past.
But of course you don't want to hear that. You'll just go back to your lies and your Rush Limbaugh.
Great! Now we need to apply it in the interior of the country.
“He’s not deformed, he’s just drunk!”
I am glad to see a judge actually take a stand against the tidal wave that has been eroding our liberties.
Another confirmation of our constitution by the courts that the TSA, the DOJ and any law enforcement officer can completely ignore.
Should you be asked to enter a password request then verify that paper has been served on your company. Carry a hard copy of the company policy.
We hear time and time again that data of thousands of individuals is lost or at risk and this includes govment agencies.
Even a personal laptop can contain HIPPA protected information that is covered by regulations and law. HIPPA information is interesting in that it is compartmentalized yet managed like Classified/Secret/TopSecret data and also requires training and background checks.
Trade secrets, pre-release copyright material, multi-party data like contracts can require notification and involvement of the other parties domestic and international.
Do not forget there is a method and system to cache and encrypt large files via a cloud service where the key to access the files is small compared to the data and is only available and accessed via an encrypted VPN link. Simple extension to GIT, Mercurial and "repo" (etc.). Companies can change the key and thus the key-hash to trigger a scrub of the data in a way that is not different than the entry of a fail safe VPN/server access key, ssh connection, local media and removable media to include OCR decoding of text from paper records recovered from digital camera images of text or some other common encoding bar code, or 2D code blocks of any high school geometric shape or projection.
Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn't. Mark Twain.
From the USCIS site
...
There have been rare cases in which a particular program is of such general interest and importance that the OCC has rendered a formal legal opinion. As a matter of policy, we have determined that providing legal opinions to private parties in matters that may come before immigration officials is inappropriate. For this reason, we are unable to express an opinion on the issues submitted by the public.
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=02729c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=02729c7755cb9010VgnVCM10000045f3d6a1RCRD:
"
Legal Disclaimer
"
New signature coming soon.
Now if only we could get the constitution to be applicable to the rest of the country we would be golden.
Troll is not a replacement for I disagree.
Volokh has a somewhat more thorough summary of the decisions here:
http://www.volokh.com/2013/03/08/interesting-ninth-circuit-en-banc-on-computer-searches-of-course-citing-orin/
[A] border search of a computer is not transformed into an “extended border search” requiring particularized suspicion simply because the device is transported and examined beyond the border.... [T]he fact that the forensic examination occurred 170 miles away from the border did not heighten the interference with the defendant’s privacy, and the extended border search doctrine does not apply, in this case in which the defendant’s computer never cleared customs and the defendant never regained possession....
[T]he forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment.... [I]t is the comprehensive and intrusive nature of forensic examination — not the location of the examination — that is the key factor triggering the requirement of reasonable suspicion here.... [T]he uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property....
[In this case,] the border agents had reasonable suspicion to conduct an initial search at the border (which turned up no incriminating material) and the forensic examination. The en banc court wrote that the defendant’s Treasury Enforcement Communication System alert, prior child-related conviction, frequent travels, crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program aimed at combating child sex tourism, taken collectively, gave rise to reasonable suspicion of criminal activity. ...
[P]assword protection of files, which is ubiquitous among many law-abiding citizens, will not in isolation give rise to reasonable suspicion, but ... password protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity.... [T]he existence of password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer.... [T]he examination of the defendant’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.
Congressmen demanding the White House give citizens due process, the Obama Administration petitioning the court so that people are free to photograph police, and now the courts saying the 4th Amendment applies to people at the border? What is next, cats and dogs sleeping together?
Why is my first reaction to this article, "I wonder what the name was of the politician/judge/rich guy who had his device grabbed by the DHS because it had a passworded file on it?"
Because, sadly, recent court rulings have left me so jaded and cynical that I can't believe that they would side with the people on a matter of rights unless one our Elite masters had been affected by it first.
Of course, not that it matters much. Cops have been known to ignore unfavorable rulings. Just look how often cops still get in a snit when they catch somebody filming them doing their job, despite repeated rulings that it is perfectly legal. Who watches the watchmen? Increasingly, nobody.
I know original intent is not the only valid way of interpreting the constitution, but if you look at the list of complaints in the Declaration of Independence, by many of the same people who went on to write the constitution, Unwarranted searches at the border was their specific complaint.
Our lovely Janet Napolitano has penned an URGENT request of the President.
In short she demands the killing of the 9th Circuit Judge and all, on the basis that
they are now Enemy Combatants, Enemy Of The State, and Persona Non Gratis.
She, On Woman's Day, demands the immediate killings.
Question: Will Obama give Favor to his Favorite ?
BTW, the pilot who spotted a Homeland Security Drone near JFK Airport is now in Syria,
at a CIA rendition and torture prison undergoing 'electric' methods of 'pleasure'.
I'm disappointed that they linked it to DHS at the border only. I want the courts to stop the California highway cops from pulling me over, "I suspect you did something naughty, hand me your cell phone so I can suck its data out."
You are told to encrypt your data to protect your privacy then that very encryption is used to make your attempt to protect your private data look like an attempt to hide some criminal act so they get you coming and going.
As a Canadian who wants to make another trip to Disneyland soon, and not being able to afford to have any of my good equipment confiscated for inspection at the border, I already plan not to bring any electronics across the border except a camera and, maybe, a factory reset but unlocked cheap smart phone with no data, no call history, no downloaded apps and an absolutely empty, freshly formatted micro SD card. I'll get a prepaid service SIM card from a US carrier for the phone and make my connection to the internet from there. I'd buy a small notebook computer in the States for web browsing related to travelling and do all the rest of the email and browsing via a secured VNC connection to the machines back home.
Nothing strange to see except the absence of anything important. Not even encrypted files for them to be suspicious about.
I wonder if they'd try to force me to login to my Canadian email account remotely via webmail to check it out.
Does this protection also apply to visiting foreigners, or are only Americans protected by this?
The district court ruled that the evidence obtained by the search should be suppressed and not admissible as evidence, which means the defendant could not be convicted. The Court of Appeals for the 9th circuit reversed that decision and held that the search was permissible:
For the above reasons, we conclude that the examination of Cotterman's electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment. Cotterman's motion to suppress therefore was erroneously granted.
REVERSED.
Cotterman (the defendant) goes to jail.
Yes, there's some dicta there indicating that there are limits on search authority at the border, but the threshold of suspicion is so low as to be meaningless.
Does this rule only apply to americans or to foreigners as well?
It doesn't have to be like this. All we need to do is make sure we keep talking.
I like how tripe like this gets moderated up as insightful. It is nothing of the sort. If you go and read the actual decision, which you can easily find, and other people have linked to you will see that indeed it was just a normal person. It gets rather tiring to see this continual whining on Slashdot that is completely unfounded and gets moderated up as "insightful."
If you wanted to criticize this decision, there are some legitimate grounds. It still allows for quite wide latitude in searches at the border. For that matter the conviction in this case was upheld. The court ruled that the search was reasonable, just that it would not have been in more narrow circumstances. However rather than read the actual decision, you decided to simply spout off.
Attention moderators: Something is not insightful simply because it is a narrative you agree with. Please do at least a minimal amount of research to see if a comment is actually insightful. It is rather hard for something to be both insightful and wrong at the same time.
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/08/09-10139.pdf
What's even more amusing is that it was moderated up as "informative." I fail to see how something can be informative when it is pure fantasy. It's also somewhat ridiculous fantasy for anyone who knows law enforcement, as they'd know that the marshals service are actually the ones who protect federal judges.
While I'm certainly not a fan of many of the recent more authoritarian changes the US has undergone, the paranoid ramblings that come out of some people on Slashdot are quite ridiculous.
What's even funnier is that this ruling is actually a partial win for the federal government. The District Court that heard the appeal, threw out the search. The Ninth Circuit reversed that, saying the search was reasonable based off of all of the evidence. However they impose some limits upon future searches by saying that simple encryption is not enough reason for search. Also they left open the possibility for a case-by-case review of searches by the courts.
This guy never found a search he didn't like.
Ok 4th amendment issues aside, why not have a little fun at HLS expense? Cross the boarder with an electronic device that contains an encrypted file. Set the password to something really vulgar and insulting. Do what's ever is necessary to get searched and when they ask you for the password you give it to them. By the time those over paid halfwits figure it out and view the file you will either have a funny story for the papers or never be heard from again.
It's about time something like this happened. The rights established in the Constitution are binding on the government, wherever you are and whoever you are. There is no provision for different rules at the border or outside the border, nor for citizens as opposed to non-citizens. Any attempt at limiting those rights is in violation of any clear reading of the Constitution, especially attempts to define the border as 100 miles wide, an area that encompasses several whole states and 2/3 of the country's population.