9th Circuit Appeals Court: 4th Amendment Applies At The Border
 

This is good, but I don't want to get my hopes up. I'm sure DHS will continue business as usual while they take this to the SC (which could be years).

In the meantime, unless you have bottomless pockets and plenty of time and don't mind a lifetime of hassles at the border, you'll still have to give them what they demand. It won't matter if the 'suspicion' is manufacturer and won't hold up in court if you haven't got the wherewithal to take them to court about it (after the fact). (I noticed that in the one case cited, the court gave CBP a pass when they claimed it was an 'honest mistake' that led them to assume the individual had a prior arrest for porn when he had not).

Still, it's good that at least one (full) court has taken a look at the issues, thought them out, and tried to act in accordance with the Constitution, not the AFS fear-mongerers.

I found the suitcase analogy to be interesting. If I read it correctly, the ruling states that border guards may search your possessions that you are attempting to bring across the border which includes your laptop. What they said required 4th Amendment protection was a much broader search of the contents of the laptop and even possessions that breaking into a laptop allowed them to discover.

Existence of a password seems equivalent to cops trying to establish suspicion based on someone refusing to answer questions or produce an ID when not required. I hope this one sticks.

I think we also have a responsibility to protect ourselves. Most of us on overseas trips take care to make sure we don't cross borders either way with stuff that might be confiscated and get us in trouble. For example, my couple of maintenance drugs are always in their prescription bottles. I always eat that last banana on the way to the airport. I always pare down the files on my laptop, especially those files I don't need during my overseas trip. If you're in any sort of technology field, you have to be very careful not to bring any technical documents on your laptop that haven't been cleared for export. Crossing a border with this stuff in your laptop can be a violation of export laws such as ITAR.

We've got to make it harder for them to violate our Constitutional rights. Most of what we can do is pretty simple.

True, although maybe by that time there will be a clear civil libertarian majority on the SC. (A girl can dream, right?)

In any case, it was nice to read something in the news this morning that didn't infuriate me!

We need a federal lawyer to chime in here, but until they do, here's a chit into the ring: This was a ruling by the 9th Circuit, and thus has the full force of law in the entire district, does it not? So, no, until it is overturned, if it is overturned by SCOTUS, it is the law, and it must be followed by federal agents operating in that district. All we have to do is ingress and egress internationally via airports in that district.

My bras d'honneur in your face, Janet.

Since early in the era of good-quality freely available encryption, such as the old DOS PGP, proponents have been saying that we all need to encrypt some or most of our routine traffic so that the presence of encryption by itself doesn't look suspicious.

20+ years later (and with easy idiot-proof whole disk encryption required on laptops by many companies) we may finally be there.

But there's the rub. DHS and the DOJ have proven repeatedly that they will ignore or outright break the law, regardless of what congress or the courts say. So while it may prevent someone from being convicted based on evidence obtained but such searches, it will likely do little to prevent CBP from conducting them anyway. The problem is Federal courts rarely, if ever, hold officers in contempt for violating such rulings. At most a civil suit occurs, which the tax payers end up paying anyway. Until a handful of CPB personnel end up in jail not much will likely change.


BTW, I'm waiting for our resident CBP propaganda officer to chime in here. Be sure to play the terrorism and kiddie porn card and claim that this will make us all less safe.

yes, whole disk encryption is now common in many companies, but those companies must comply with the law, and when travelling internationally, if the law of a country you're arriving in requires you to unlock it, via password, I would think most companies have a policy of compliance with that. Mine does.

Now, in the 9th district, this is no longer the case.

Business travellers from companies with well staffed legal departments will be informed and corporate policies regarding the unlocking of encryption in the district will be changed. These have the resources and the will to make sure the law is being complied with by federal agents, especially when trade secrets are potentially being exposed.

My company has a policy with wording clearly written by lawyers "encouraging" us to "cooperate" with authorities at the border. Great CYA so that they don't have to back us if we choose to take a stand.

Personally I hope I would just walk away from the encrypted laptop, call corporate security later from the airport to report it stolen by the feds, and be back up working with a new laptop and restored data 30 minutes after making it to a site with an IT center. The kink in that plan is that I'd rather not lose my cell phone and camera memory cards to retaliatory confiscation. It's easy enough to back up the cell phone to the cloud, but backing up gigabytes of photos before coming home from an overseas trip is nontrivial.

We log the who/what/where/why whenever such "cooperation" is requested. You can bet there will be a followup in cases like this in the 9th circuit if your company has competent legal resources, or most likely, proactive discussions at much higher pay grades than the fellow asking you to unlock the corporate laptop.

have you tried Google Drive or DropBox?

Drudge has linked with a snappy title ;) to a Washington Times piece on the same ruling:

FEDERAL COURT SLAPS DOWN BIG SIS ON BORDER SEARCHES...

Before anyone celebrates, there is still a gaping hole in the decision that DHS can drive a truck through:

Link to article

A prior conviction for a different crime should not translate into reasonable suspicion that triggers a search. Under that judgement, a prior DUI conviction could, in theory, trigger a search of a hard drive for information related to growing marijuana.

"One strike and you're out".

For that circuit, it would be law unless the court stays the ruling. A stay, however, is unlikely in this case as the court found that only a reasonable suspicion was needed to do a forensic examination of the computer and that standard was met in this case.

LAX is notorious for sending males traveling alone from Southeast Asia to secondary. Now, if the ruling is interpreted as "male traveler X has a sex crimes conviction, and is returning to a country known for sex tourism, then they can confiscate the computer/camera/USB/flash/hard drives/whatever to investigate kiddy porn", that's one thing.

If it's interpreted as "male traveler X is returning is returning to a country known for sex tourism, then they can confiscate the computer/camera/USB/flash/hard drives/whatever to investigate kiddy porn" is very different. They'll still be pulling guys aside and demanding access to their gear, and confiscating gear if not provided. The excuse that will be given is that it's an evil guy returning from a "sex tourism" country. Which, compared to the hypocritical US, is pretty much every other country on the planet.