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."
Nah, this isn't a 'border thread' it's all about child pornography.
Found two references to perps with the same name here:
Massachusetts to Florida: Stuart Romm, a former administrative law judge from Brockton, Massachusetts was extradited to Florida to face charges of transmitting child pornography and soliciting sex over the Internet from a young boy, who was actually a Florida sheriff.[110]
http://www.uri.edu/artsci/wms/hughes/ppncpt5.htm
Distribution of child pornography has expanded exponentially with advances in computer technology and increased availability and popular use of the Internet. Southern Nevada’s ICAC has been instrumental in developing cases against persons who commit child exploitation crimes. Federal laws regarding sexual exploitation include: Transporting, Receiving, Distributing, Manufacturing, or Possession of Child Pornography; Coercion and Enticement of Children for Sexual Acts; Travel With Intent to Engage in Sex With a Minor; Child Prostitution; and Child-Sex Tourism. Between January 2000 and April 2005, 108 individuals have been charged with federal child pornography-type offenses in the District of Nevada. Persons prosecuted include Stuart Romm, sentenced on November 22, 2004, to a minimum mandatory 180 months in prison and lifetime supervised release for his jury convictions on Receipt and Possession of Child Pornography; Kevin Eric Curtain, sentenced on October 25, 2004, to five years in prison for his jury convictions on Travel with Intent to Engage in a Sexual Act With a Juvenile and Coercion and Enticement of a Minor; and Mark Raffensparger, sentenced on October 12, 2004, to 41 months in prison and lifetime supervised release for his guilty plea to Possession of Child Pornography.
http://www.usdoj.gov/usao/nv/home/pressrelease/june2005/children060705.htm
Yes, no sense trying to prove guilt. Make them prove their innocence... right?
Anybody somewhat competent with computers can make a laptop look any way they want. All they need is a network connection. It's the single best way to utterly destroy someone. Nobody will believe them. Their life is over.
G4s have a Secure Trash option.
Push the button and the trashed items can not be recovered.
In theory you would retrieve your client's files from a separate site, read them,trash any down loads, then secure the trash.
I hearby re-adjust my earlier stance, and give credit to both you and Fred Nerks for making me do some homework of my own, and putting me on the right track...
There is a lot more to this story, and this Romm character, and it is not pretty. IMHO, given the circumstance, they took the correct course of action (Click View as HTML):
[PDF] File Format: PDF/Adobe Acrobat - View as HTML Jason F. Carr, Las Vegas, Nevada, for appellant Stuart Romm. Nancy J. Koppe (briefed) and Daniel ... Defendant Stuart Romm connected to the internet from a ... www.ca9.uscourts.gov/ca9/newopinions.nsf/D4958BAAF34B2292882571B500580F96/$file/0410648.pdf?openelement -
At the British Columbia airport, Canada’s Border Services Agency discovered that Romm had a criminal history and stopped him for questioning. Romm admitted he had a crimi- nal record and was currently on probation. Agent Keith Brown then asked Romm to turn on his laptop and briefly examined it. When Brown saw several child pornography websites in Romm’s “internet history,”
Brown asked Romm if he had violated the terms of his probation by visiting these websites. Romm answered “Yes,” and also said, “That’s it. My life’s over.”
(snip)
Meanwhile, Canada’s immigration service had decided not to admit Romm into the country. Romm withdrew his applica- tion for entry and was placed under detention until the next flight to Seattle. Agent Brown then informed U.S. Customs in Seattle that Romm had been denied entry and possibly had illegal images on his computer.
(snip)
In an unrelated Florida state court prosecution, Romm pleaded nolo contendre to two counts of promoting sexual performance by a child and one count of child exploitation be computer.
(snip)
By his own admission to ICE, Romm repeatedly sought out child pornography over the internet.
(snip)
Romm then described to the agents how he used Google to search for child pornography websites. When he found pic- tures he liked, Romm would keep them on his screen for five minutes and then delete them. Romm used the terms “save” and “download” to describe this operation. While staying in his hotel room in Las Vegas, Romm viewed child pornogra- phy and masturbated twice, while or shortly after viewing the child pornography; he claimed to have then deleted such images. In all, Romm used the internet for approximately six- and-a-half hours during his week-long stay in Las Vegas
(snip)
Defendant Stuart Romm is charged in Count 2 of the Indictment with Knowing Possession of Child Por- nography, in violation of Title 18, United States Code, Section 2252A(a)(5)(B). In order for Defen- dant Romm to be found guilty of that charge, the Government must prove each of the following ele- ments beyond a reasonable doubt:
First, That Defendant Stuart Romm knowingly pos- sessed a laptop computer with a hard drive that con- tained three or more images of child pornography;
Second, That the images of child pornography know- ingly possessed by Defendant Stuart Romm, had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by com- puter.
(snip)
He also acknowl- edged Canadian authorities knew about his prior conviction. It was against this background that Romm acknowledged hav- ing “lapses” from his “therapy,” and viewing images of child pornography.
Do not believe in anything simply because you have heard it.
Do not believe in anything simply because it is spoken and rumoured by many.
Do not believe in anything simply because it is found written in your religious books.
Do not believe in anything merely on the authority of your teachers and elders.
Do not believe in traditions because they have been handed down for many generations.
But after observation and analysis, when you find that anything agrees with reason and is conducive to the good and benefit of one and all, then accept it and live up to it.
- Gautama Buddha
My initial impression was this wasn't some accidental site he visited and the fact that Romm was denied entry by the Canadian authorities because of his criminal history, I knew there had to be a lot more to this story. I think Homeland security has better things to do than search a laptop, unless they have a good reason to.
People crossing a border don't have ANY expectation of privacy, and can be searched without probable cause or a warrant.
I hope you accept the compliment. ;o)
>Fred, per post #46...USF CAN believe it if Jan says it!" ;o)
I'm glad Fred changed his mind!
LOL.. as you can tell in my earlier statements (#20) yes, and yes. Unless that is, you have a purrdy black US passport, and not the standard dark blue one.
Your hunch was correct. ;oP
Romm was denied entry by the Canadian authorities because of his criminal history...
That's the quote that made me suspicious. It would have been helpful had the author of this article given an indication of just what this 'criminal history' was...but he didn't, and that leads me to believe he has an agenda...
biography
Declan McCullagh is CNET News.com's Washington, D.C., correspondent. He chronicles the busy intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired.
http://www.econlib.org/library/Columns/y2004/McCullaghsnooping.html
IN RE: STUART A. ROMM
SS.J.C. Order of Indefinite Suspension entered by Justice Marshall on November 3, 1999, retroactive to October 31, 1998.
BOARD MEMORANDUM
Bar Counsel appeals from the report of a hearing committee, which recommended that the respondent, Stuart A. Romm, be suspended from the practice of law for two years based on his conviction for activities involving the solicitation of sex by a minor over the Internet. Maintaining that a two-year suspension is inadequate for the misconduct involved, Bar Counsel urges us to recommend an indefinite suspension. The respondent has not appealed from the hearing committee's report. We allow Bar Counsel's appeal and recommend an indefinite suspension retroactive to October 31, 1998, the effective date of his temporary suspension. Matter of Romm, No. BD-98-027 (October 5, 1998).
http://www.mass.gov/obcbbo/bd98-027.htm
"Bodhisattva."
Gesundheit!
And here we are again, where any American who loves the Constitution should know that Mr. Romm's case is not the point...it's the more general idea of "possession" being the crime.
Anything that can be used against the criminal can be used against the citizen, which is why proper safeguards must always be in place. In this case, since innocent people have been convicted (or had to go through great trouble and embarrassment in fighting prosecution), we know the proper safeguards are not in place. This, of course, is a different issue from the laptop searching.
Thanks, that does change the story.
"(or had to go through great trouble and embarrassment in fighting prosecution)"
Examples?
Apologies, but I fear I must temporarily withdraw my specific comment as I can't look up references right now, but if you want to search, I think one case was in Indiana, IIRC. Anyone familiar with the Duke lacrosse case knows that prosecutorial zeal can bear little relation to law enforcement, resting more upon personal "score" and success in the case, regardless of justice. Such a situation can easily foster false prosecutions, surely you can see...but I am unable to cite any specific cases for you now.
"Is the key stored on the laptop? 128 bit encryption can be cracked rather easily, 256 bit is harder, though most PGP systems use 2048 bit encryption, but that's a 128 character string, quite a lot of typing for someone to use on an everyday basis. If it's 8 characters, that's 128 bit encryption, something I can crack using my laptop and about 20 hours of time, depending upon the sample size. If I have a huge sample of text or word documents, it can be cracked within 10 minutes; faster with word documents."
"And if I can do it with simple tools, so should most government agencies. If a border agent found your data all to be encrypted, it would seem to me to be more likely for them to seize and keep the laptop until they can either crack the code, or get you to give it up yourself."
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Thanks for the tips. I hope all who use PGP check the strength of their encryption and take the obvious lesson about the importance of having a suitably long key. Mine was long, but not quite long enough. Now it is (with some extra for good measure).
As for the border security, I will avoid crossing any check point, internal or at the border, with sensitive data, encrypted or not, given this extension of power that the state has granted itself. There are relatively easy ways to avoid the need for this, as you are no doubt aware. What I don't have cannot be seized. If your scenario develops, the seizers can satisfy their urge to pry open the PGP-locked box and I can enjoy their discovering that the container is empty. PGP seems to be pretty good privacy, but some further review will be needed to assure that the cache-wiping and "deleted file" wiping utilities are working as advertised.
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