Posted on 07/27/2006 11:39:13 PM PDT by Marius3188
"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.
What: A business traveler protests the warrantless search and seizure of his laptop by Homeland Security at the U.S.-Canada border.
When: 9th Circuit Court of Appeals rules on July 24.
Outcome: Three-judge panel unanimously says that border police may conduct random searches of laptops without search warrants or probable cause. These searches can include seizing the laptop and subjecting it to extensive forensic analysis.
What happened, according to court documents:
In January 2004, Stuart Romm traveled to Las Vegas to attend a training seminar for his new employer. Then, on Feb. 1, Romm continued the business trip by boarding a flight to Kelowna, British Columbia.
Romm was denied entry by the Canadian authorities because of his criminal history. When he returned to the Seattle-Tacoma airport, he was interviewed by two agents of Homeland Security's Immigration and Customs Enforcement division.
They asked to search his laptop, and Romm agreed. Agent Camille Sugrue would later testify that she used the "EnCase" software to do a forensic analysis of Romm's hard drive.
That analysis and a subsequent one found some 42 child pornography images, which had been present in the cache used by Romm's Web browser and then deleted. But because in most operating systems, only the directory entry is removed when a file is "deleted," the forensic analysis was able to recover the actual files.
During the trial, Romm's attorney asked that the evidence from the border search be suppressed. The trial judge disagreed. Romm was eventually sentenced to two concurrent terms of 10 and 15 years for knowingly receiving and knowingly possessing child pornography.
The 9th Circuit refused to overturn his conviction, ruling that American citizens effectively enjoy no right to privacy when stopped at the border.
"We hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine," wrote Judge Carlos Bea. Joining him in the decision were Judges David Thompson and Betty Fletcher.
Bea cited the 1985 case of U.S. v. Montoya de Hernandez, in which a woman arriving in Los Angeles from Columbia was detained. Police believed she had swallowed balloons filled with cocaine, even though the court said they had no "clear indication" of it and did not have probable cause to search her.
Nevertheless, the Supreme Court said police could rectally examine De Hernandez because it was a border crossing and, essentially, anything goes. (The rectal examination, by the way, did find 88 balloons filled with cocaine that had been smuggled in her alimentary canal.)
Justices William Brennan and Thurgood Marshall dissented. They said the situation De Hernandez experienced had "the hallmark of a police state."
"To be sure, the court today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches," Brennan wrote. "If this is the law as a general matter, I believe it is time that we re-examine its foundations."
But Brennan and Marshall were outvoted by their fellow justices, who ruled that the drug war trumped privacy, citing a "veritable national crisis in law enforcement caused by smuggling of illicit narcotics." Today their decision means that laptop-toting travelers should expect no privacy either.
As an aside, a report last year from a U.S.-based marijuana activist says U.S. border guards looked through her digital camera snapshots and likely browsed through her laptop's contents. A London-based correspondent for The Economist magazine once reported similar firsthand experiences, and a 1998 article in The New York Times described how British customs scan laptops for sexual material. Here are some tips on using encryption to protect your privacy.
Excerpt from the court's opinion (Click here for PDF):
"First, we address whether the forensic analysis of Romm's laptop falls under the border search exception to the warrant requirement...Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant. For Fourth Amendment purposes, an international airport terminal is the "functional equivalent" of a border. Thus, passengers deplaning from an international flight are subject to routine border searches.
Romm argues he was not subject to a warrantless border search because he never legally crossed the U.S.-Canada border. We have held the government must be reasonably certain that the object of a border search has crossed the border to conduct a valid border search....In all these cases, however, the issue was whether the person searched had physically crossed the border. There is no authority for the proposition that a person who fails to obtain legal entry at his destination may freely re-enter the United States; to the contrary, he or she may be searched just like any other person crossing the border.
Nor will we carve out an "official restraint" exception to the border search doctrine, as Romm advocates. We assume for the sake of argument that a person who, like Romm, is detained abroad has no opportunity to obtain foreign contraband. Even so, the border search doctrine is not limited to those cases where the searching officers have reason to suspect the entrant may be carrying foreign contraband. Instead, 'searches made at the border...are reasonable simply by virtue of the fact that they occur at the border.' Thus, the routine border search of Romm's laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under "official restraint."
In sum, we hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine."
Now can we enforce our borders against illegals?
Jeez, to bad all judges don't feel the same way!
Deleted photos? The guy should not have agreed to a search but this still is a very harsh sentence. I wish we were as vigorous in deporting illegal alien criminals.
This ruling might actually have a major effect on me. My client is preparing a lawsuit against the US, and has provided me with a laptop that contains many confidential documents--including many developed under attorney-client privilege. Does this mean that I have to curtail my international travel with this laptop? Even if I set up an FTP site and store files remotely, if the Feds are allowed to do warrantless forensics, they could conceivably obtain privileged information.
Meanwhile, we are not enforcing border law against known violators.
Very interesting implications in this ruling.
Yes, and you can be convicted if you get e-mail spam that contains it and you delete the message as soon as you see what it is. Not saying that's what this case was, but based on others I've looked at, that's happened. :-( Even those who were activists against (e.g., CyberAngels) were in danger of felony convictions. Watch what links you click or what URLs you type--you may become a felon in an instant. :-(
What kind of criminal history does this guy have for canada to keep him out? They let hamas set up shop there.
FTPing over the border doesn't allow for viewing of deleted files or the secret hidden cache that many don't realize is created by Internet Explorer.
Why can't they just raid the FTP site where the data landed without a warrant? The data crossed the border. That's all they claim they need to know.
Yes, it has happened. (Well, I can't confirm 10-15 years since it hasn't been that long and I think one person got out after losing only 3 or so by getting it overturned.) The problem is that many bad police and prosecutors are concerned more with scoring a "conviction" than actually stopping criminal behavior. :-(
President Bush required an exemption for his DUI conviction, IIRC.
I realize that the case had to do with whether a border was crossed or not, but it was the forensic analysis without warrant that I was unaware of.
Note that Clinton and Gore are also banned for admitting marijuana use.
What you say is true ...... Though in this case this man had a criminal past thus more likely was savoring degenerate kiddie porn photos. But they were deleted which indicates a wish to flush them.
They'd need a warrant to obtain logs from an FTP site. These are warrantless searches and analyses.
A short time ago, my company enforced a new security policy of PGP encrypting every laptop hard drive in the inventory. The concern was preventing theft of confidential information in the event of a lost or stolen laptop. Happily, this should also be a good defense against such government over-reach as this. For those who are managing their own laptop, this might be a good precaution to consider. Some users have reported performance problems with their installation, but I've had no difficulty, and it's nice to know that my data is secure (or at least "PGP secure" - - - who knows what tricks NSA and similar agencies have up their sleeves, but at least most thieves will be unable to get at the data, and probably border guards as well).
I remember using PGP long ago and it was basically, public enemy #1. The Feds hated it. That was years ago, when it was shareware and BBS days.
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