Sen. Wyden Wants Answers From New DHS Head, Introducing Legislation To Create Warrant Requirement For Border Phone Searches

from the annual-Fourth-Amendment-restoration-project dept

There aren't many rights extended to anyone in the "Constitution-free zones" we like to call "borders." You may have rights 100 miles inland, but the government's needs and wants outweigh citizens' and non-citizens' rights wherever immigration officers roam. According to the Supreme Court, warrants are required for cell phone searches. But neither the Constitution nor Supreme Court rulings apply within 100 miles of the border, where the government's needs and wants are considered more important than the protections they can avail themselves of everywhere else in the country.

Senator Ron Wyden is looking to change that. Rather than cede more ground to the rights-swallowing concept of "national security," Wyden is looking to change the laws governing the "Constitution-free zones."

Sen. Ron Wyden will soon introduce legislation to prevent Customs and Border Patrol agents from demanding the passwords to online accounts and mobile devices from American travelers without a warrant.

In a letter to Secretary of Homeland Security John Kelly dated Feb. 20, the Democratic senator from Oregon said border searches that take place without a warrant circumvent the right to privacy and “weaken our national and economic security.”

We'll see how that sits with John Kelly. Kelly appears to be on board with the new administration's "extreme vetting" immigration stance. He's offered to take the DHS's requests for immigrants' social media account info to the next level -- moving it from a voluntary request on visa application forms to mandatory demands for account passwords. Chances are, Kelly has about as little use for citizens' rights as he has for non-citizens in general. The security of the nation is prized above presenting the appearance of a Constitutional republic to the outside world.

Given the current climate in the White House, the legislation will be facing a steep uphill grade. But while we wait for the security vs. privacy legislative fistfights to commence, perhaps DHS head John Kelly will help us pass the time by explaining exactly what it is that he feels gives him the right to search devices without a warrant and/or demand this country's visitors hand over their social media account passwords. From Wyden's letter [pdf]:

1. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password traveler?

2. How is CBP use of a traveler's password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?

3. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to data? How are such demands consistent with the Fifth Amendment?

4. How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?

5. How many times in each calendar year 2012, 2013, 2014, 2015, and 2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?

Then again, perhaps not. Government officials are kind of used to ignoring questions they don't feel like answering. This will put Wyden back in a familiar position: repeatedly asking unanswered questions of agency officials at any Congressional hearing his opponents can't keep him from attending.

Filed Under: 4th amendment, border patrol, border searches, cbp, dhs, ron wyden

Court: Border Search Warrant Exception Beats Riley In The 'Constitution-Free Zone'

from the protections-arbitrarily-applied-to-protect-inland-electronic-devices dept

The Supreme Court declared in 2014 that law enforcement could no longer perform searches of cellphones incident to arrest without a warrant. The exceptions to this ruling are making themselves apparent already.

The area of the United States where the Constitution does not apply -- while still being fully within the borders of the US -- apparently exempts law enforcement from following this ruling in regards to cellphone searches. The Southern District of California has come to the conclusion that border searches are not Fourth Amendment searches and that the government has no need to seek a warrant before searching a cellphone.

The court notes the Riley decision says one thing but the "border exception" says another.

Heading in one direction is the Supreme Court’s bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty.

Balancing the two competing interests in this case, the court ultimately finds the government's national security interest outweighs citizens' privacy interests. As it weighs this against cases dealing with more elaborate and lengthy device searches at the border, the court basically finds that if the Fourth Amendment is violated by "cursory" searches of devices, it is only violated a little.

Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device’s contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest. Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable.

The "border exception" the court carves out for a warrantless search of cellphones at the border somehow relies on exceptions carved out in the original Riley decision, despite saying Riley doesn't control border searches.

The two cases can be reconciled. The most obvious path for reconciliation is to conclude that the border search exception is among the traditional exceptions to which Riley’s warrant requirement does not apply. This approach finds safe footing in the Supreme Court’s statement that “other” “exceptions” may continue to justify a warrantless search. Riley, 134 S. Ct. at 2494 (“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”). It also is consistent with the observation from Montoya de Hernandez, (473 U.S. at 539), about when balancing individual privacy rights against rights of the sovereign, the balance “is qualitatively different . . . than in the interior” and the balance is “struck much more favorably to the Government.” This approach also avoids the spectacle of deeming that Riley undercut 200 years of border search doctrine without even a mention.

Not as much of a "spectacle" as the California court would think, considering the Riley decision set aside years and years of the government relying on dubious analogies like "containers" or "pair of pants" to justify the search and seizure of anything carried on or near a person (like in their vehicle) incident to arrest. It may not date back 200 years, but it does date back to the Fourth Amendment itself, which is a controlling authority with more than 200 years worth of history.

The case here deals with an actual border crossing (Calexico, California) but the government has basically declared any area within 100 miles of a border can be called "the border" for the sake of searches and detainments predicated on reasonable suspicion or, in many cases, law enforcement hunches.

As for this case, it's hardly the ideal test for balancing Riley against the border search exception. For one, the defendant challenging the warrantless cellphone search was already neck-deep in reasonable suspicion, thanks to the discovery of drugs in his vehicle. Officers on scene had more than enough reason to detain him and likely had uncovered enough damning evidence to support a warrant affidavit. Of course, they did not seek one. Instead, they briefly browsed his phone until they found further suspicious content.

Some courts refuse to give officers a pass when they could have gotten a warrant but choose not to. Those courts are in the minority. This court is part of the majority.

Here, illicit narcotics had been discovered. Caballero had been arrested. Reasonable suspicion had jelled into probable cause. For the time being, he and his cell phone were safely in the hands of government agents. Other than the increased administrative work required, there is no apparent reason why Riley’s search warrant requirement could not be applied without undercutting the interests supporting the border search doctrine. One can certainly say that Riley casts doubt on Cotterman’s approval of warrantless searches where an arrest is made. Nevertheless, as long as this Court can apply circuit precedent without running afoul of intervening authority, it must do so.

Being within 100 miles of the border means never having to seek a warrant, even if the government has both the time and the probable cause to do so… at least until someone manages to push a challenge up to the appeals court level or beyond.

Filed Under: 4th amendment, border searches, constitution free zones, phone searches, privacy, riley, supreme court, warrant

Court Says Border Searches Of Your Computer Are Okay Because You Shouldn't Keep Important Info On Your Computer

from the final-up-yours-of-2013-to-the-4th-amendment dept

This one is hardly a surprise, given how many (though not all) courts have ruled concerning searches of computing devices at the border. The government's general theory is that there is no 4th Amendment right at the border, and thus customs officials can search anything. The argument that they're trying to prevent "bad stuff" from getting into the country really doesn't make much sense though. If bad stuff is "on a computer" it could easily be sent digitally across the border with no intervention from a customs official. Furthermore, making border searches of laptops and phones even more troubling is the nature of how information is stored. When we pack for a trip we deliberately choose what to include in our suitcase -- so we know what's coming with us. However, on our electronic devices, we pretty much store absolutely everything. Arguing that these are subject to a full search seems problematic -- but many courts have found otherwise.

And, now there's another one. A judge in NY has dismissed a challenge to the searches brought by the ACLU. The judge, Edward Korman, repeatedly quotes former head of Homeland Security, Michael Chertoff, who now makes money by hyping up the threats the country faces, so it's not like he's the most unbiased of folks to be relying on for how important these border searches really are. Judge Korman claims that the defendants have no standing to bring the case in the first place. There is one individual (a PhD. student) who actually had his computer searched, and then some professional organizations who worried about their members having their computers searched. The judge is simply not impressed by their arguments... at all. He notes that Customs and Border Patrol appears to search so few laptops that it's highly unlikely that any individual will have theirs searched -- and thus these groups can't really allege a likely harm. He points out that it's wrong to use a declaratory judgment case to address "a claim of alleged injury based on speculation as to conduct which may or may not occur at some unspecified future date."

As for the one guy, Pascal Abidor, who did have his laptop searched, Judge Korman is also not impressed, noting that he's not suing over that particular search, but the possibility of future searches. The judge seems a bit perplexed by this decision, but notes that it takes away his ability to get standing:

Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged.

But, as Judge Korman notes, if he can't show any real likelihood of future harm, he can't show standing.

Even after dismissing for lack of standing, the judge decides to take on the issue anyway, and this is where he starts to get really insulting to anyone who thinks that perhaps they should have some privacy rights at the border. He openly mocks the plaintiffs for arguing for the need for a "reasonable suspicion" standard for searches, noting that this bar is so low that it's not like they'd get much more privacy out if it anyway:

Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to "guarantee" confidentiality to their sources.

He goes on to suggest that since traveling internationally involves going into other countries, these same people would probably have even less privacy over their data, since other countries may be even more willing to search their computers. He even cites the situation of David Miranda having his electronics searched in the UK.

Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah. Indeed, the New York Times recently reported on the saga of David Michael Miranda who was detained for nine hours by British authorities "while on a stop in London's Heathrow airport during a trip from Germany to Brazil."

While the judge's point is correct that other countries are unlikely to protect the privacy of travelers as well, and that means that any information on a laptop may be inherently unsafe, it seems like a bit of a weak copout to argue that since other countries have no respect for your electronic privacy, that the US shouldn't either.

He goes even further, arguing that because there's a "special need" at the border to stop bad people, that it's perfectly fine to ignore things like probable cause or reasonable suspicion -- again quoting Michael Chertoff to suggest that border laptop searches have stopped "bad people" from entering the US.

But then he argues that since everyone knows they may be searched at the border, there isn't really an invasion of privacy:

The invasion of privacy occasioned by such a border search, however, like the search of luggage, briefcases, and even clothing worn by a person entering the United States, is mitigated by other factors..... As Professor LaFave observes, because "the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches." .... Thus, "[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him."... Indeed, because of the large number of laptop computers (close to a million per year) that are lost by travelers--numbers that far exceed the comparative handful of laptops that are searched at the border--the sensible advice to all travelers is to "[t]hink twice about the information you carry on your laptop," and to ask themselves: "Is it really necessary to have so much information accessible to you on your computer."

This seems problematic on multiple levels. First, if we go by the idea that there's less of a privacy violation because you know it's coming, then that gives the government the right to ignore the 4th Amendment so long as it tells you ahead of time that it's going to ignore the 4th Amendment. Even the Supreme Court in Smith v. Maryland -- the infamous case concerning the 3rd party doctrine -- states that such a scenario is ridiculous, and that just because you know that you're going to be searched, it doesn't automatically make the search reasonable.

As for the suggestion that you shouldn't store stuff on your computers, I'm sure that's great in theory, but I'd like judges to make decisions based in reality. This suggestion is basically "don't use your computer for what it's designed for, because we might search it." That's not exactly compelling.

Again, given past precedents, and the specific facts of this case, it's not entirely surprising. That doesn't mean it's not disappointing to see yet another middle finger given to the 4th Amendment to close out the year.

Filed Under: 4th amendment, border searches, computer, devices, pascal abidor

Feds Abused Anti-Terrorism Database To Track Chelsea Manning Supporter, Seize His Computer

from the subject-detained-in-notorious-border-town-of-Chicago,-IL dept

We've written a number of times about the so-called Constitution-free zone that extends 100 miles inward from the borders of the United States, a place where the Border Patrol, along with the DHS and ICE, exercise the "right" to search electronic devices without a warrant. (The government has also baffingly argued that not searching your laptop doesn't provide enough of a civil liberties benefit to outweigh the potential security "gain.")

As is the case with most unconstitutional acts performed by government agencies, the justification is "terrorism." Keeping our borders secure apparently means allowing federal agents to delve as deeply as they want into electronics that cross the border, even if it's someone who just went to Mexico on vacation. Presumably, David House wasn't a threat to national security when he left for Mexico, but by the time he landed at Chicago's O'Hare Airport, he was.

House worked with the Bradley Manning Support Network and this was all the "evidence" ICE needed to alert DHS agents that House would be returning from Mexico through Chicago -- and the wide-open policy on electronic searches was all the agents needed to seize and search House's phone and laptop.

House was stopped at Chicago’s O'Hare International Airport coming back from vacation in November 2010. At the time, he was working with the Bradley Manning Support Network, which was raising funds for the legal defense of the soldier who has since plead guilty to providing classified documents to WikiLeaks. DHS agents detained House, interrogated him about his political activities and beliefs, and then seized his laptop computer, mobile phone, camera, and USB drive. The agents returned House’s phone after inspecting it, but the government kept the rest of his devices for seven weeks while agents searched his files for evidence. Even after the government returned House’s physical devices, it continued to actively investigate copies of his files for nearly six more months.

The ACLU filed suit on House's behalf, claiming he was targeted for political reasons, leading to his First and Fourth Amendment rights being violated. The government tried to dismiss the suit in 2012, claiming its agents don't need reasonable suspicion or a warrant to search electronic devices at the border. The judge smacked that down, granting that the DHS has certain powers which preclude reasonable suspicion or warrants, but that those powers are still limited and that its politically-motivated actions violated House's First Amendment rights. A settlement was reached with the government, which agreed to destroy the data it gathered from its search of House's electronics and release documents related to the search.

Here's what the ACLU has discovered from the released documents:

The settlement documents reveal that an agent with Homeland Security Investigations (HSI)—an Immigration and Customs Enforcement (ICE) subdivision that is now the second largest law enforcement agency in the United States—entered a “lookout” into a government database called TECS (see the document here), effectively notifying government agents throughout the country that House was wanted for questioning in connection with the Department of Justice’s investigation into Manning and WikiLeaks. As a result of the lookout, which was linked to the Advance Passenger Information System, HSI later received an automated notification that House would be traveling outside the country and that he would return through O’Hare on November 3, 2010.

The records also show that HSI was acting in cooperation with—and perhaps at the request of—the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division, not to protect our borders but to further a domestic investigation of the WikiLeaks disclosures. House’s connection to Manning through the Bradley Manning Support Network made him a target of that investigation. The government then used its access to airline passenger information to learn when and where David House, and others, would be traveling across our border (see the document here), and laid in wait to seize his computer and other electronic devices.

Much like the GCHQ's abuse of terrorism laws to intimidate David Miranda, the US abused its terrorism laws to pursue a vindictive domestic investigation. In addition to misusing its powers to intimidate House, the government also violated its own electronic search policies, which state that device searches should generally be completed within 30 days. House's devices were held for seven weeks and his data was investigated for the next seven months.

House may have received a settlement from the government and the presiding judge may have suggested that politically-motivated searches are unconstitutional, but this won't do much to change our current border policies on electronic devices. As the ACLU points out, federal agents are performing nearly 5,000 of these searches a year, and with the vague definition of "border" including a 100-mile band around the country and any other inland entry point where someone might return from a foreign country, the power remains almost limitless and completely unrelated to keeping our borders secure.

House's experience shows just how many tools the US government has at its disposal to intimidate whistleblowers and their associates (no matter how poorly defined). Fortunately, the ACLU scored a rare win against government-ordained abuse, but our federal agencies have frequently shown that the legality of their actions is usually only a minor concern -- something they'd rather deal with after the fact than consider ahead of time, especially when attempting to shut someone up.

Filed Under: anti-terrorism, border searches, bradley manning, chelsea manning, computers, david house, dhs, ice, seized, tecs

DHS Says Agent 'Hunches' Trump Citizens' Rights In Searching Your Computer At The Border

from the burns-through-a-handful-of-black-toner-cartridges-as-well dept

The Dept. of Homeland Security has finally coughed up its Civil Rights/Civil Liberties Impact Assessment of its suspicionless electronic device searches performed at border crossings by ICE and CBP agents. It's been a long time coming.

The DHS announced it would take a look at this policy's impact on civil liberties "within 120 days." That was back in 2009. The report was released (but not publically) in December of 2011. In February of this year, it finally published a two-page executive summary of its findings for the public's perusal. There wasn't much contained in the release, but what was included was disturbing enough. In its own estimation, the DHS felt it complied with the Fourth Amendment but went on to state that imposing a "reasonable suspicion" requirement for device searches would be "operationally harmful" without any "concomitant civil liberties benefit." In other words, the public wouldn't be appreciably better off if these searches didn't violate anyone's rights, but the DHS felt its agencies would be worse off if forced to respect them.

The actual report has finally been pried loose, thanks to a FOIA request by the ACLU. There's a lot of information available in the report, including an explanation as to why the agency feels a "reasonable suspicion" threshold is "inadvisable." This is significant, the ACLU points out, as it's the first time the government has explained why it believes suspicionless searches "enhance" security. It begins with some familiar language and expands on that thought process a bit

[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit. First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.

So, a CBP/ICE agent's hunch trumps a US citizen's rights. Rather than take the chance that someone dangerous might pass through its net, the agencies would prefer to be allowed to use "I've got a bad feeling about this" as justification for digging through not just someone's laptop, but anyone's laptop. The report supports the agencies' hunch-based investigative processes with anecdotal evidence but no real data.

Any data actually produced comes from outside parties concerned about the First and Fourth Amendment rights of American citizens. The Constitution Project's recommendations for border policy reform are included with the freed documents and it concludes that suspicionless searches not only have a very low "hit rate," but that the policy itself, as it stands now without limitations, actually creates a burden for the CBP and ICE.

Moreover, requiring reasonable suspicion to conduct a search of electronic devices would focus limited law enforcement resources where they can be most effective. Suspicionless searches are not well-suited to identifying and locating contraband or illegal material, as the CBP's own data show. In 2009, for example, only about 5% of the electronic devices searched at the border were seized as a result of the search. Put differently, in the vast majority of instances involving border searches of electronic devices, the traveler has had to needlessly withstand a significant intrusion into his or her privacy for no legitimate law enforcement purpose.

This hit rate puts it right in the neighborhood of another rights-violating law enforcement tactic -- NYC's stop-and-frisk program. Lots of busywork but very little in the way of results.

But this report is almost more about what it doesn't include than what it does. If you're looking for some in-depth discussion of the DHS' views on various civil liberties, you're going to be disappointed. Here's what greets readers when they reach the "Fourth Amendment" section.


This continues for four straight pages. First Amendment? A page and a half of redacted text before this concluding sentence:

The laptop border searches in the ICE and CBP policies do not violate travelers' First Amendment rights as defined by the courts.

Interesting. Of course, the involved agencies don't really seem too concerned about any definitions provided by any court. If they did, they might have paid a bit more attention to a Supreme Court decision dealing directly with the Fourth Amendment.

Even more problematic is the government's claim that the "hard-to-articulate" hunch of a border agent is enough for the government to scrounge around through our personal photos, medical and financial records, email, and whatever other sensitive information may be stored on our laptops and phones... As the Supreme Court explained in Terry v. Ohio, if law enforcement agents are allowed to intrude upon people's rights "based on nothing more substantial than inarticulate hunches," then "the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,' only in the discretion of the [government]."

This evaporation process seems to be nearly complete in the so-called "Constitution-free zone" and things continue to get noticeably drier elsewhere. The DHS clearly believes that citizens' Constitutional rights end where its jurisdiction begins -- and unfortunately at this point in time, that's pretty much everywhere.

Filed Under: 1st amendment, 4th amendment, border searches, homeland security, hunches, ice, laptops

9th Circuit Appeals Court: 4th Amendment Applies At The Border; Also: Password Protected Files Shouldn't Arouse Suspicion

from the well-that's-a-surprise dept

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. This is a huge ruling in favor of privacy rights.

The ruling is pretty careful to strike the right balance on the issues. It notes that a cursory review at the border is reasonable:

Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable.

But going deeper raises more questions. Looking stuff over, no problem. Performing a forensic analysis? That goes too far and triggers the 4th Amendment. They note that the location of the search is meaningless to this analysis (the actual search happened 170 miles inside the country after the laptop was sent by border agents to somewhere else for analysis). So it's still a border search, but that border search requires a 4th Amendment analysis, according to the court.

It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here....

Notwithstanding a traveler’s diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment’s reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.” Flores-Montano, 541 U.S. at 152. Likewise, the Court has explained that “some searches of property are so destructive,” “particularly offensive,” or overly intrusive in the manner in which they are carried out as to require particularized suspicion. Id. at 152, 154 n.2, 155–56; Montoya de Hernandez, 473 U.S. at 541. The Court has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis....

For years, we've repeated two key arguments for why border searches of laptops and other devices should be illegal.

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include.
• The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

We'd never seen a court even seem to acknowledge that content on devices is different than contents in a suitcase... until now. One interesting tidbit, is that they specifically note that "secure in their papers" part of the 4th Amendment, while noting that what's on your device is often like your personal "papers."

The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library.... Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.

The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”.... The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”... These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”

Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.

Huh. That last paragraph sounds a lot like my argument above. Very cool to see a court actually recognize this basic point. Considering it had been ignored for so long, I'd almost given up hope.

In this case, they also noted that part of the forensic analysis of the computer involved restoring deleted files, and note:

It is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried.

The court is equally worried about the fact that the device is often just a portal to cloud based services, and how a search of a device might lead to access to that data, even if it's been snug and secure "in the cloud" the whole time, rather than crossing the border:

With the ubiquity of cloud computing, the government’s reach into private data becomes even more problematic.12 In the “cloud,” a user’s data, including the same kind of highly sensitive data one would have in “papers” at home, is held on remote servers rather than on the device itself. The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box. Notably, although the virtual “safe deposit box” does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border. With access to the cloud through forensic examination, a traveler’s cache is just a click away from the government.

Of course, this doesn't mean that no searches can ever take place. Instead, they just need to be "reasonable" and live up to the standards of the 4th Amendment. In fact, in this very case they still say that there was "reasonable suspicion to conduct the initial search, and that appears like it may be a legitimate claim (the guy had a previous conviction for child molestation, which the agents believed -- incorrectly, but they believed it at the time -- was for child porn). But for everyone else, where there is no reasonable suspicion, our 4th Amendment protections just got stronger (at least if you're entering the country in an area covered by the 9th Circuit (covering California, Alaska, Arizona, Hawaii, Oregon, Nevada, Washington, Idaho and Montana).

There's one other important part of the ruling as well. In discussing the "reasonable suspicion" the court agrees it was there because of the prior conviction, as well as the fact that guy was travelling from Mexico which is "a country associated with sex tourism." However, the government also argued that password protected files gave them reasonable suspicion, and thankfully the court slaps them down:

To these factors, the government adds another—the existence of password-protected files on Cotterman’s computer. We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement “cannot rely solely on factors that would apply to many law-abiding citizens,” ... and password protection is ubiquitous. National standards require that users of mobile electronic devices password protect their files.... Computer users are routinely advised—and in some cases, required by employers—to protect their files when traveling overseas....

There are some dissenting opinions, basically suggesting that this upturns more settled law, but the majority ruling makes a strong case for why the Supreme Court has actually not really directly answered this question before, but has tiptoed carefully around it. Still, it seems likely that there will be an appeal to the Supreme Court, so this probably isn't over yet. Hopefully, the Supreme Court will uphold this important ruling, and recognize that we don't give up our 4th Amendment rights at the border.

Filed Under: 4th amendment, border search, border searches, computers, dhs, ice, passwords, privacy, reasonable suspicion

Homeland Security: Not Searching Your Laptop Doesn't Benefit Your Civil Liberties, So We Can Do It

from the interesting-4th-amendment-interpretation dept

We've written many times over the years concerning the legality of Homeland Security searching your laptop at the border without reasonable suspicion. Many courts have held that, effectively, the 4th Amendment does not apply at the border, so they don't need a warrant to search your laptop. However, they've been continually pushing this ability further and further. For example, they got a court to say that this applies not just while you're at the border -- they can take your laptop off site to search it and hang onto it for a while. However, that time, they at least needed to have a "reasonable suspicion." DHS has taken a pretty firm stand that it must be able to keep doing this. While the ACLU and the EFF and others keep challenging these rules, to date the only possible crack was in a case where there's evidence that the search was politically motivated.

Late last week, a bizarre finding popped up. Back in 2009, when DHS announced its new rules for laptop searches at the border, it also promised that it would do its own "Civil Liberties Impact Assessment" within 120 days. Three years later, Homeland Security's Orwellian "Office of Civil Rights and Civil Liberties" has finally released a two page executive summary of the findings, which more or less says "there are no civil liberties issues" with laptop searches. What else would you expect them to say? The ACLU has filed a FOIA request for the full report, but let's just focus on the most horrifying statement in the executive summary:

We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

That statement is so bizarre I read it half a dozen times before I was sure it really said what it appears to say. It appears to be a somewhat stunning redefinition of how one reviews whether or not something violates the 4th Amendment. Rather than recognizing the rather explicit restrictions under the 4th Amendment, they merely say that it is okay to do these searches because not doing them would not have civil rights/civil liberties "benefits." That is incredible. The double negative logic there is truly amazing. In other words, we can violate the Constitution, so long as not doing so would not have civil liberties benefits. Wow.

Meanwhile, since Homeland Security has similarly argued (as part of these cases) that its Constitution Free zone for searches applies to any place 100 miles from the United States border, some are pointing out that this means that every electronic device -- computers, cell phones, you name it -- in Detroit can be searched with absolutely no reasonable suspicion under DHS's interpretation (since Detroit is less than 100 miles from Canada). But don't worry, since there is little civil liberties or civil rights benefits to not searching your stuff, DHS says it's okay.

Oh, and in case you're wondering on what basis DHS makes this assessment, it appears to be based on their own directives rather than on any "laws."

So, if you're playing along at home, DHS has decided, based on its own review of its own directives, that it can search any electronic device within 100 miles of the border without requiring a warrant, probable cause, reasonable suspicion or anything like that -- because actually respecting the Constitution "would be operationally harmful" and wouldn't really create any "civil rights/civil liberties benefits" for you.

Filed Under: 4th amendment, border searches, civil liberties, civil rights, homeland security, privacy

Court Suggests Politically Motivated Border Searches May Be Unconstitutional

from the that-would-be-big-news dept

The federal government has long held that you have no Constitutional rights at the border, and that they can search your laptop at the border without following the 4th Amendment. Unfortunately, courts have agreed with this position across the board. However, some situations can get a little trickier. What about if they're taking your laptop away and searching it (and holding it) offsite (i.e., over the border)? Well, one court has said that's okay if there's reasonable suspicion, but the specific boundaries of what's legal are still pretty fuzzy. The government, more or less, holds that anything goes. However, last year, David House, a friend of Bradley Manning, sued the government for taking his laptop away when he crossed the border from Mexico. They held the laptop for 49 days, only returning it after the ACLU sent them a threatening letter.

As House notes, he believes the seizure of his laptop was entirely political, and not related to any suspicion or threat that House caused. He also notes that the laptop contained a bunch of confidential information about the efforts to support Manning in his legal fight against the government. The US government responded by basically saying, "hey, look, we're the federal government and we can do what we want, so leave us alone." Specifically, the US government continues to insist that searching a laptop is no different than searching your luggage. Of course, as we've noted, that's ridiculous:

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
• The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

So far, it appears that the court is not buying the government's argument and is allowing the case to move forward, suggesting that if the search is politically motivated, it might violate the person's rights.

Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border.

The court also makes it clear that while border searches may not violate the 4th Amendment, if they are politically motivated, it's possible that there could be a 1st Amendment issue, which could make things interesting. Specifically, the court notes that since none of the government's interest had anything to do with border patrol this might actually be a 1st Amendment violation:

As discussed above, the agents questioned House solely about his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had contact with anyone from WikiLeaks during his trip to Mexico.... None of their questions concerned border control, customs, trade, immigration, or terrorism....

[....]

The Defendants’ assertion that concluding that House has alleged a plausible First Amendment claim would be somehow inconsistent with the Court’s finding that the initial search and seizure was routine under the Fourth Amendment analysis ignores the difference in legal standards that apply to Fourth Amendment and First Amendment claims. See Tabbaa, 509 F.3d at 102 n. 4 (noting that “distinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards, than distinguishing what is and is not routine in the Fourth Amendment border context”). That the initial search and seizure occurred at the border does not strip House of his First Amendment rights, particularly given the allegations in the complaint that he was targeted specifically because of his association with the Support Network and the search of his laptop resulted in the disclosure of the organizations, members, supporters donors as well as internal organization communications that House alleges will deter further participation in and support of the organization. Accordingly, the Defendants’ motion to dismiss House’s First Amendment claim is DENIED.

This stage of the case is just the court rejecting the feds attempt to get the case dismissed, but certainly the language explaining why that motion was denied is extremely encouraging.

Filed Under: border searches, bradley manning, david house, first amendment, fourth amendment, free speech
Companies: wikileaks

Feingold Points Out That DHS's Chertoff Is Misleading On Border Laptop Searches

from the reasonable-cause? dept

Following the release of Homeland Security's policies for searching laptops at the border, where the rules are, effectively, "anything goes," DHS boss Michael Chertoff claimed that laptop searches were only done when the border guard had a "suspicion" and placed that individual in "secondary inspection." However, Senator Russ Feingold has now hit back, pointing out that the official DHS policies say absolutely nothing about there needing to be a suspicion or that laptop searches only happen on secondary inspection. If Chertoff were being honest, why wouldn't those things be in the official policy? And, if Chertoff insists that DHS will only do searches when there is a real suspicion, what's wrong with following the "probable cause" standard that it insists it should be allowed to ignore? It's nice to see Senator Feingold asking these questions.

Filed Under: border searches, customs, homeland security, laptops, michael chertoff, russ feingold, senate

Will DHS Border Search Logic Be Used To Allow Gov't Screening Of All Internet Traffic?

from the bad-potential-precedent dept

We've already explained how ridiculous it is for DHS to say that border patrol agents need to search laptops to prevent dangerous information from getting into the country. Obviously, if that was the intent of the individual, they'd just send the info electronically and not have to deal with any customs agents. Slashdot points us to a blog post by Steven M. Bellovin where he takes that same thought and flips it on its head, noting that, based on the DHS's statements, DHS may believe that it also has the right to scan any data entering or leaving the country. On top of that, he points out that this could potentially mean that if you encrypt that data you send over a border (say, via a VPN), you could potentially be violating laws that bans "hiding" goods that you send over the border. While the courts have not at all ruled in this way, you could pretty easily see the government making this sort of case.

Filed Under: border searches, customs, data transfer, laptops