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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."
Why bother... Just encrypt it with a random long key that you can't easily memorize and mail the key printed on a piece of paper. Then you can tell them you don't have the password even if they wanted it. I kind of doubt they are going to open up every random letter that goes through the post office.
Though it's all kind of a silly hypothetical. No one at the border wants your actual data anyway, they just want to harass you over not being given access to it.
Because it is the right thing to do?
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.
And they upheld considering someone suspicious if they are a proven pedophile. The defendant didn't win - the evidence will still be used. They keyed on him because he has a long record of molesting kids and went back-and-forth to Mexico on a regular basis.
The good thing about this case is laying out some parameters barring random suspicionless running a full-blown forensic exam on a device while still allowing known shady characters to be given a digital anal exam.
Notice I used the word 'search', not the word 'stop'.
The Border Patrol is allowed to set up checkpoints within the 60-100 mile region where it can conduct routine stops as part of its mission to control illegal immigration. At such places it is not allowed to conduct suspicion-less searches. They may ask you questions which you can respond to voluntarily.
http://www.usborderpatrol.com/Border_Patrol300b.htm
The only places that the Border Patrol is allowed to conduct suspicion-less searches is at ports of entry. Not generally along the border. Not 100 miles from the border. Only at ports of entry. Ports of entry include international airports that may be in the interior of the US.
It is not a long-standing 'view'. It is the result of laws passed by the FIRST Congress of the United States, actually their 5th bill, known as the Tariff Act which was signed into law July 4 1789 by George Washington. For nearly 100 years tariffs were the chief source of funds for the operation of the Federal Government. Obviously to enforce and collect tariffs it is necessary to search people and goods entering the US.
Since Congress is granted the power to regulate commerce by enumeration in the Constitution they can define reasonable search under the 4th Amendment to include inspecting everything that enters the country at a port of entry.
Hope this clarifies the law for you.
The 9th Circuit's rate of getting overturned by the Supreme Court is not unusual among the circuits. Every year some have a higher rate than the 9th and some lower. They just hear the most cases at the circuit level and generate the most appeals.
All the circuits have a pretty high rate of getting overturned since there's some selection bias in the cases which are appealed to the court. First when deciding to file an appeal since you're not going to unless you think you can win. Second, in granting cert which only occurs when the justice responsible for the circuit thinks there's something to the appeal, else he or she would deny cert.
Notice I used the word 'search', not the word 'stop'.
You may think it's ok for the government to stop you at any time and question who you are, where you came from, and where you're going, but fortunately many people (including myself) do not.
You can say a lot of bad things about the TSA, but the TSA does not give a crap about your data. That's Customs and Border Protection.