counting down the days to getting back to the Land of the Free,
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."
This is what happens when mere possession (esp in the form of computer files and all the dangers of unasked for downloads, viruses, etc) is against the law.
Easy to frame someone up, hard to prove innocence when 'possession' is guilt.
Do away with 'possession' laws.
Encrypt your entire hard drive, after replacing old with a new one.
Perhaps a short poem
Do you know how much effort it takes to actually find and convict those who actually harmed someone else?
"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."
So once again the drug war is used to trump our rights. gee who woulda thought /sarc
You really need to learn what happens in the lives of the victims of pedophiles. And those who start with kiddie porn fuel an industry that shatters lives.
How can you prove it was him sitting at his laptop when the browsing was taking place?
Years ago, before traveling to Beijing (and completely uncertain what I would encounter there), I bought a copy of Clean Disk Security to wipe all company-proprietary info from my laptop.
Turned out it was unnecessary. (But --oops-- I seem to have lost my copy since...)
"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."
You could encrypt. Of course if you do that they'll claim you're a terrorist and lock you up until you give up the info.
"Easy to frame someone up, hard to prove innocence when 'possession' is guilt."
Laws written by lazy bureaucrats FOR lazy bureaucrats.
You won't like this, but...I agree with this three-judge panel!
My guess is, there is A LOT more to Stuart Romm than deleted child porn on his laptop.
What? Do you realize what you just said? You agree with Gondring? No way this could ever happen. On a "Border" thread, no less. What is going on here? Has someone been preaching "Can't we all just get along?"
Ok, seriously, USF, keep my number handy next time you cross the border. If ICE gets you, I will be a character witness for you.
Use it regularly to securely erase deleted files.
What this decision means to Stuart Romm is beside the point. The legal precedent is ominous for plenty of innocent people who accidentally stumble across illegal images.
I know I know... at first I was waiting for the trick question, and later on my head was spinning from the thought of what I just admitted.
Perhaps I'm just too busy and happy counting down the days to getting back to the Land of the Free, and having my laptop inspected, or perhaps I'm losing it.... take your pick. ;o)
counting down the days to getting back to the Land of the Free,
Heck, we've been searching laptops for years; but only if we suspect criminal activity.
I'm not stepping into this one, I've still got funny brown stuff on my boots from the last time.
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