By Julian Hattem - 12/31/13 03:02 PM EST
A federal court has tossed out a lawsuit trying to prevent the government from searching laptops, cellphones and other devices at U.S. border checkpoints.
The circuit judge’s decision to uphold the Department of Homeland Security (DHS) policy on Tuesday was a blow to civil liberties groups that argued the practice violated the Constitution’s protection against unreasonable search and seizure.
"A Boston federal court ruled that U.S. federal agents can’t conduct “suspicionless” searches of international travelers’ smartphones and laptops at the border and other ports of entry, a decision hailed by the American Civil Liberties Union (ACLU) as a major victory for privacy rights. In a 48-page decision, U.S. district judge Denise Casper ruled that border officials need justifiable reasons to search a person’s electronic devices, which should be balanced against the privacy interests of travelers."
Curious if this also applies to Laptops ? This quote does not mention the scope of the ruling, but to me, the article leaves come confusion to my question:
>The Supreme Court has not yet considered the application of the border search exception to smartphones, laptops, and other electronic devices
From the article: [4th amendment] protections do not disappear merely because one happens to be at a real - or imaginary - border.
Ah, but they do. It's called the 'border search exception' and it has been consistently upheld by courts, based largely on the 5th act of Congress passed in 1789 which set up the US Customs Service. Not only are searches of laptops and storage devices considered reasonable in this context, but so is opening mail and just about anything short of a strip search.
This has been argued over on a variety of grounds quite recently but the courts have stood firm on it. So like it or not, it's better to avoid carrying any storage device containing data that might be construed as suspicious.
The original motion makes a more nuanced argument than this thread gives credit for. In particular, the motion does not claim that border searches in general are unconstitutional. It makes a much finer scoped claim that:
without individualized criminal suspicion, the off-site search of an electronic device taken at a border is unconstitutional. No such suspicion of ongoing or imminent criminal activity existed in the case of Ms. Lazoja giving rise to reasonable suspicion to search and seize her property. Consequently, neither was there probable cause, nor a warrant. Therefore, the search and seizure of Ms. Lazoja’s property violated her rights under the Fourth Amendment.
To make this argument, the motion mentions some precedent. Most notably was United States v. Kim (page 12):
In Kim, where DHS agents seized a laptop computer at Los Angeles International Airport and later sent it to a laboratory to be copied and searched, the district court found that the
lengthy post-seizure retention of a laptop at a second site, outside the airport, “did not possess the characteristics of a border search or other regular inspection procedures,” and that it “more resembled the common nonborder search based on individualized suspicion, which must be prefaced by the usual warrant and probable cause standards.” Id. at 58 (citing United States v. Brennan, 538 F.2d 711, 716 (5th Cir. 1976)). The court in Kim questioned whether the seizure and imaging of a laptop at the border “can accurately be characterized as a border search at all.”
And furthermore that doing so for a cell-phone is particularly egregious; recent supreme court cases strengthen the argument that if we're going to protect laptops then we certainly need to protect cellphones (page 13):
The Supreme Court recently expanded the categorically heightened privacy interests in data located on cell phones, specifically addressing cell phones’ location data.
The motion also makes auxiliary arguments about retention and duration: even if the border search was constitutional, shipping the device off to a lab was not constitutional without a warrant. And even if shipping the device to a lab was constitutional, retaining it for so long was not constitutional. And even if retaining the device for so long was constitutional, retaining the data indefinitely is not constitutional. At least, not without warrants.
>Between October 2008 and June 2010, over 6,500 people traveling to and from the United States had their electronic devices searched at the border. Nearly half of these people were U.S. citizens.
... and none of them were non-belligerent white individuals traveling to/from non-suspicious countries.
"It sounds like this recent ruling may have rendered that page out of date."
Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.
The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.
The worst part is the judges reasoning. From the NY Times article [1]:
>In his opinion, Judge Edward R. Korman of the Federal District Court for the Eastern District of New York found that the plaintiffs did not have standing for their lawsuit because such searches occur so rarely that “there is not a substantial risk that their electronic devices will be subject to a search or seizure without reasonable suspicion.”
>Even if the plaintiffs did have standing, Judge Korman found that they would lose on the merits of the case, ruling that the government does not need reasonable suspicion to examine or confiscate a traveler’s laptop, cellphone or other device at the border.
edit: I find this reasoning quite similar to the recent ruling in NSA surveillance of "[You wouldn't have known about it without the Snowden leak, so you don't have standing since Congress did not intent for you to know about surveillance]".
The border search privilege applied at the time of the founders, so it's hard to argue that it's constitutionally invalid. And, in fact, this ruling upholds the border search privilege; it just sets electronic devices outside of their reach.
Is it that the court is basically applying the same border search exceptions that apply to boxes, paper notebooks, and film cameras to laptops and phones that you find outrageous? Or is it the border search exceptions themselves you find outrageous?
> "The border search exception is a doctrine of United States criminal law that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause."
Amazing, this is literally the first paragraph in the ruling:
"Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper. This includes terrorist materials and despicable images of child pornography."
Judge Korman is quoting Michael Chertoff, Searches Are Legal, Essential, USA Today, July 16, 2008, at A10.
For the record, I didn't submit this to start a flame war. I get the whole concept of "if you cross the border, you're subject to a full search" -- after all, that's the entire purpose of customs: to control stuff moving across the border.
The thing here is that government took the guy's computer, then sent it off to some lab 150 miles away for analysis. If I understood the article correctly, the judges said that was fine to do, even without probable cause.
Since a notebook computer is a tool for my trade, I'm left with the conclusion that not only can I be fully searched, but the government can also take my tools away from me for a long period of time while they examine them. There's no guarantee that the tools I left with will be allowed to re-enter.
Lesson? The U.S. government is effectively killing the personal PC, at least as a centralized place to keep my stuff. Move everything to the cloud, and make the notebook, phone, tablet, etc disposable.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...
Your phone is undoubtedly your "effects" (in 1789, touching your phone without your consent would have been a trespass to chattel). But searches incident to a border crossing have always been considered not "unreasonable," because inspecting the flow of things across the border has always been seen as a legitimate government function. Indeed, one of the very first things Congress did in 1789 was to create a customs department in order to perform precisely such inspections.
That said, there is an originalist legal argument to the contrary. The framers understood the border-search exception to exist for purposes of customs enforcement. Customs enforcement has always been about physical, rather than intangible goods: https://www.eff.org/files/2015/11/10/clearcorrect_v_itc_-_op.... So searches of digital content are at least outside one of the key purposes of the border search exception. (Of course, that doesn't help with the other purpose of the exception, which is national security.)
> Part of a Broader Problem: The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers' electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least "reasonable suspicion" prior to conducting such searches and recent Supreme Court precedent seems to support that view.
Given the words "unique circumstances of this case," it is unlikely that this decision was intended to set precedent for anything.
It would appear that the court reiterates that searches and seizures at the border needed to be supported by reasonable suspicion, and the examination needed to be limited in scope and duration.
It seems like nothing in the statement would stop them from seizing your laptop for two months just because it has a BSD Beastie or a Linux Tux sticker on it. Remember, the suspicion only has to be reasonable to them.
It has nothing to do with any kind of Patriot/equivalent act. The border search exception was authorized by the First Congress in 1789. It is extremely well established that at international borders the government can conduct warrantless searches and seizures, as long as they are reasonable.
In this case, the court did not feel that the search was reasonable, citing such factors as the actual search not taking place until after the person had left, and the search taking place far away from the border.
The 4th amendment protects against unreasonable search and seizure, and the state must show cause for conducting any search. At a border crossing, search for contraband (including contraband plants and animals which can seriously damage the United States) are an exception because it's reasonable to search people at a border crossing.
Here, the EFF has to show that the search that was conducted wasn't reasonable in some manner or that it otherwise violates due process. They will need to show that the execution of the search wasn't reasonable, because being subject to a search in and of itself generally is. The only SCotUS ruling on search of electronic devices has been Riley v California (https://en.wikipedia.org/wiki/Riley_v._California) where they ruled that a search warrant was required to search an electronic device even when an individual has already been placed under arrest.
By Julian Hattem - 12/31/13 03:02 PM EST A federal court has tossed out a lawsuit trying to prevent the government from searching laptops, cellphones and other devices at U.S. border checkpoints.
The circuit judge’s decision to uphold the Department of Homeland Security (DHS) policy on Tuesday was a blow to civil liberties groups that argued the practice violated the Constitution’s protection against unreasonable search and seizure.
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