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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.
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".
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
Great! Now we need to apply it in the interior of the country.
“He’s not deformed, he’s just drunk!”
And the public can challenge the "constitutionally dubious laws and regulations" if charged with a crime. However venting outrage online or on the street over a law is not going to just make the government say OK were sorry and we will trash the law you are complaining about.
There have been search-and-surveillance activities such as the case brought against Dr Arian, a former University of South Florida professor. His defense successfully challenged the Patriot Act and got the evidence collected using the Patriot Act excluded from the proceedings. To change bad laws or policies you need to challenge the validity of such laws or policies in open court. It might be a long haul but the judicial branch of the government has the last word on whether you were denied your rights. They are also empowered to invalidate Legislation created by the government. Any law such as the Patriot Act can only be really scrutinized for it's legality when it is actually used against someone. The government already thinks the Patriot Act is iffy. They use Gitmo to avoid following any laws in the US. The US government may be cumbersome and outright idiotic at times but it is not a static organization. It is constantly being scrutinized and changed. It is by no means perfect but it could be worse. Governing 350 million people and trying to make sure everyone's interests are satisfied is damn near impossible but can be entertaining at times. No matter what changes the government makes there will always be people complaining about something. People talk about US decline and I wonder when did the US ever get to pinnacle of righteousness and prosperity to they are supposed to declining from? Just take a look at US history and point out where the US had no flaws were not committing idiotic and sometimes dangerous and brutal acts in the domestic and international spheres.
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.
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.
My sentiments exactly. Protections for rights were written into the Constitution because the framers believed everyone had those rights inherently.
Being outside the borders of the country just means our government has no jurisdiction to protect those rights, not that they don't exist.
IMHO, if you believe that civil rights only apply to American citizens, or those inside US borders, then you don't really believe in America or democracy.
80% isn't bad because there's a selection bias toward cases which are likely to be overturned in cases appealed to the Supreme Court as well as with the Court's decision to grant certiorari. Cases which don't have a chance at getting overturned often either aren't appealed or aren't granted certiorari.
Why are you holding your breath? Do you have something to hide?
"Yes, Weapons grade halitosis".
When our name is on the back of your car, we're behind you all the way!
So far, in pretty much all cases where that distinction was attempted to be raised, courts have consistently ruled that when US Constitution speaks of "people", it means everyone, not just citizens. Which is a very sensible interpretation, since the Constitution also uses the more specific term "citizens" on a few occasions (e.g. the original text, where it lays out the prerequisites for various government offices, or the 15th amendment, which protects the right of citizens to vote).
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.
The problem is that over time all the many tiny bits of authoritarianism add up. Sure, it's pure fantasy to say things are like that now, or will be like that next month, year or even decade. But let things pile up over 50 or 100 years and see the result.
In fact, some political theorists, Antonio Gramsci being the most known although the members of the Frankfurt School also have dwelt in this line of reasoning, have proposed that a slow method doing small changes of decades is the correct way to go about doing a revolution in any country with a decentralized power structure. That's because such countries, differently from those in which power is strongly centralized, cannot be changed overnight by "merely" replacing the all powerful central power structure via a violent revolution and starting giving new orders. Decentralized ones, on the other hand, have from hundreds to many thousands of power centers, up to and including at the individual level, so that violently overcoming one results in merely upsetting all the others, who then rebel and fight back. Thus, the "revolution" (supposing this term is even valid in this context) must be done very slowly, below the pain threshold that'd cause a majority of the different power centers to rebel, letting their natural leaders die their natural deaths all the while the new generations grow already used to the slightly changed cultural landscape, and going through this cycle as many times as needed until generations down the line the end result is achieved.
The problem with thinking this possible is that it'd require conspiracy-level dedication from generations of revolutionaries too, not to mention their goals would also change wildly over time. Very unlikely, to say the least. In any case, the core of the argument, that things can turn 180 if you let them go their way 1 at a time, remains valid even if there's no one actively directing it, as most probably there isn't. Give things the right push at the start and some kind of political inertia (the proverbial "I don't care, it isn't my problem") can very well keep them going just because.
Conservatism: (n.) love of the existing evils. Liberalism: (n.) desire to substitute new evils for the existing ones.