Begin forwarded message:
From: Richard Forno <rforno@infowarrior.org>
Date: April 22, 2008 4:55:47 PM PDT
To: Blaster <rforno@infowarrior.org>
Cc: David Farber <dave@farber.net>
Subject: Appeals Court: Border electronics searches are okay
(be warned, ye who carry proprietary business information or personal data
on your devices......rf)
Border Agents Can Search Laptops Without Cause, Appeals Court Rules
By Ryan Singel EmailApril 22, 2008 | 6:21:20 PMCategories: Privacy, The
Courts
http://blog.wired.com/27bstroke6/2008/04/border-agents-c.html
Federal agents at the border do not need any reason to search through
travelers' laptops, cell phones or digital cameras for evidence of crimes, a
federal appeals court ruled Monday, extending the government's power to look
through belongings like suitcases at the border to electronics.
The unanimous three-judge decision reverses a lower court finding that
digital devices were "an extension of our own memory" and thus too personal
to allow the government to search them without cause. Instead, the earlier
ruling said, Customs agents would need some reasonable and articulable
suspicion a crime had occurred in order to search a traveler's laptop.
On appeal, the government argued that was too high a standard, infringing
upon its right to keep the country safe and enforce laws. Civil rights
groups, joined by business traveler groups, weighed in, defending the lower
court ruling.
The 9th U.S. Circuit Court of Appeals sided with the government, finding
that the so-called border exception to the Fourth Amendment's prohibition on
unreasonable searches applied not just to suitcases and papers, but also to
electronics.
The ruling (.pdf) came in a case where customs agents searched the laptop of
Michael Arnold who was returning from the Philippines. They found images
they believed to be child pornography, seized the laptop and later arrested
him. While the lower court ruling excluded from trial the pictures of young
boys the government says it found on the hard drive, they now can be used
again.
The panel chose to follow the reasoning of a similar case from the 4th
Circuit, known as Ickes (.pdf), which held that the government did not need
any reason to search a vehicle crossing the border.
The 9th's ruling did not, however, clarify whether a traveler has to help
the government search his computer, by providing the login information, or
what would happen when the government decided to search a laptop with
encrypted data on the drive. The defendant in the case can appeal the
decision to the U.S. Supreme Court, but the Court is unlikely to take up an
issue that two separate appeals courts have agreed upon.
In the meantime, travelers should be aware that anything on their mobile
devices can be searched by government agents, who may also seize the devices
and keep them for weeks or months. When in doubt, think about whether online
storage or encryption might be tools you should use to prevent the feds from
rummaging through your journal, your company's confidential business plans
or naked pictures of you and your-of-age partner in adult fun.
The case is Arnold vs. USA.