Court: 4th Amendment Applies At Border, Password Protected Files Not Suspicious 194
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."
Hazzah! (Score:3, Insightful)
About time the courts refute the absurdity of the state security paranoia.
Re:It's still smart to look clean... (Score:5, Insightful)
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.
Re:I think it's great, but... (Score:5, Insightful)
Because it is the right thing to do?
The "Elite" factor (Score:5, Insightful)
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.
Re:Allow? (Score:3, Insightful)
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.
Re:Hazzah! (Score:5, Insightful)
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.
Re:100 mile border (Score:5, Insightful)
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 [usborderpatrol.com]
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.
Re:I think it's great, but... (Score:5, Insightful)
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.
Re:Stopped Reading after "9th Circuit" (Score:4, Insightful)
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.
Re:100 mile border (Score:5, Insightful)
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.
Re:100 mile border (Score:3, Insightful)
Yes, this isn't unusual. I think the common phrase used in TVLand when this was done in the Eastern Bloc was, "Papers, please!" An excellent role model.
Sad to think there are countries that were in the Eastern Bloc that now have freedoms that Americans don't.
Re:It's still smart to look clean... (Score:5, Insightful)
Re:No kidding (Score:4, Insightful)
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.
Re:It's still smart to look clean... (Score:4, Insightful)
Don't forget, Homeland security doesn't just claim the right to search like this at the borders, but even if you just happen to live and/or travel within 100 miles of the border ...
Papers citizen. Now! Achtung!!!
Not to mention, you now also consider yourselves "Cop of The World", and Seal Team Six recently proved they don't need a warrant to mete out capital punishment (not that I disapproved in any way in that case; that sucker was begging for it).