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."

Re:Makes sense

[dgatwood]

This is, of course, the 9th circuit, where you'd pretty much expect this result from an en banc review (which for the 9th circuit probably means a limited en banc review by 11 judges, because I don't think all 29 judges have ever reviewed anything). The only way I could see them going the other way is if it were merely a three-judge panel with some of the most conservative judges on that court.

I think it's great, but...

[DugOut]

the 9th circuit is to the left of most courts, so there's a good chance that this will be overturned.

Update, 10 May 2013

[93 Escort Wagon]

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.

Re:100 mile border

[hedwards]

No, that's not true. There is a small area inside the customs and quarantine area where you don't require a visa to be if you're traveling to another country, but that's related to international treaties and isn't a real border. It's also related to the fact that that's where they do the actual inspection and stuff as it's the most reasonable place to do the inspection.

You're a fucking idiot

[Anonymous Coward]

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.

Better summary of decision

[Freddybear]

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/ [volokh.com]

        [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.

Re:100 mile border

[Charliemopps]

I adopted a kid from outside the country... trust me, you get to know what is and is not international when you adopt. Most of the airport from the plane to the customs desk is "Border" Once they search your shit and you're through, you're "in country" In the united states, it's really nice. They have colored lines on the floor... once you're over the line, you're in the US. Most people don't notice. But when you have a screaming kid that doesn't speak your language, thinks you just kid-napped them and has a terrible case of Giardia, you become acutely aware of exactly where the united states border begins and ends.

Re:100 mile border

[hawguy]

The extended border region doesn't obviate the need for reasonable suspicion. It is only in ports of entry that suspicion is not required to justify search.

The ACLU seems to think otherwise:

http://www.aclu.org/technology-and-liberty/fact-sheet-us-constitution-free-zone [aclu.org]

• * Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
• * The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
• * But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
• * As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
• * Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
• * However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.

And the DHS doesn't seem to be afraid to stop and question motorists far from the "real" border even if there's no reasonable suspicion at all:

http://www.liveleak.com/view?i=ef3_1361978936 [liveleak.com]

Re:100 mile border

[hawguy]

What SC validation? According to Wikipedia, it's the opposite: "the Supreme Court has clearly and repeatedly confirmed that the border search exception applies only at international borders and their functional equivalent" and there's a link to such a ruling from 1973.

http://voices.yahoo.com/supreme-court-checkpoint-rulings-diminish-fourth-8598639.html [yahoo.com]

In Martinez-Fuerte the court went on to add that while the stop does infringe upon a motorist' right to free passage without interruption, it is a minimal infringement. They also went on to state that a warrant for such a minor infringement was not necessary, despite the Fourth Amendments declaration that no search or seizure of a person or thing occur without a warrant issued by a detached neutral magistrate.

Re:Foreigners?

[shutdown -p now]

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).