Federal Appeals Court Limits Warrantless Border Confiscation and Searches of Mobile Devices

Joe Wright
Activist Post

This is an update on the assertion of the DHS that warrantless border searches can extend to laptops and other electronic devices.

The Washington Times is reporting that a federal appeals court has disagreed by a vote of 8-3 with the Office for Civil Rights and Civil Liberties, which is the official division of Homeland Security assigned with overseeing the rights of travelers and searches of their personal effects.

The ruling makes clear that there should be reasonable suspicion; a ruling by the full 9th Circuit that overturned a previous ruling by a three judge panel:

Customs and Border Protection officers cannot confiscate or download every laptop or electronic device brought into the U.S., ruling that people have an expectation their data are private and that the government must have “reasonable suspicion” before it starts to do any intensive snooping.

In a broad ruling, the court also said merely putting password protection on information is not enough to trigger the government’s “reasonable suspicion” to conduct a more intrusive search — but can be taken into account along with other factors.

The 9th U.S. Circuit Court of Appeals judges said it was a “watershed case” that gets at what kinds of limits the government must observe when it comes to technology and privacy. (Source)

Very few people are aware that in a country supposedly protected by a Constitution enumerating liberties such as freedom from unreasonable searches and seizures, there exists a 100-mile-wide ring around the entire nation that the ACLU has called a “Constitution Free Zone.” It is here that government has tried hardest to test the limits of its authority.

This zone lies within the realm of border protection and permits otherwise unconstitutional actions such as inland checkpoints, drones, license plate tracking, biometric data collection, and DNA collection, all without a warrant. DHS sought to add digital searches and confiscation to the list.

What makes this zone particularly troubling is that the nation’s largest cities lie within it, making 2/3 of the population susceptible to whatever the government wishes to do in its headlong march toward tyranny.

When it comes to civil liberties, Homeland Security cares, which is why they have their own office to oversee its activities, called the The Office for Civil Rights and Civil Liberties at the Department of Homeland Security. Orwell would be proud of its name and function.

Americans have long come to accept that when encountering a foreign border in their travels, it is OK for agents to physically and electronically examine one’s baggage and other personal effects; we have been well trained that we are all guilty until proven innocent by the state until permitted to proceed. As ArsTechnica previously reported, if a laptop or other digital device is part of your personal effects, DHS attempted to assert that not only should the device be superficially examined, but any files on that device could also be examined. This not only crushes the 4th Amendment, but potentially the First as well:

Some also contend that searching laptops without reasonable suspicion violates the First Amendment. The Civil Rights and Civil Liberties Office at the DHS, which is theoretically in charge of ‘promoting respect for civil rights and civil liberties in policy creation and implementation’ within the organization, disagrees.

‘Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights,’ writes Tamara Kessler, the report’s author. ‘However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.’ (Source)

If this sounds a bit convoluted and doublespeaky to you and you might want further clarification … you can’t have it. That’s right, the office that cares so much about your civil liberties and privacy has offered only an executive summary, but the full report is off limits.

That rubs the ACLU the wrong way. ‘Given the report’s troubling conclusion that its agents are entitled to the sweeping power to examine Americans’ private papers, it is important that the agency make the full and complete report available,’ Crump told us. ‘The public has a strong interest in understanding the arguments and evidence that supports the report’s conclusion, not just in knowing the ultimate results.’

In a further troubling side note, DHS has issued a grant of $583,000 to the University of Alabama to develop technology to track all mobile devices, laptops and tablets. This technology will offer a full chronology of location history and prevent forging of that history. It, like other high-tech security initiatives, is being developed for use in protecting government buildings and agencies. But if history offers any lessons, it is that this technology – just like biometric ID – will trickle down rather rapidly into the everyday lives of Americans with or without a Constitution.

For additional commentary on this civil liberties issue and the impact that the Constitution Free Zone already has had on journalism, please see the video below with Kevin Gosztola of Firedoglake.

The 9th Circuit U.S. Circuit Court of Appeals at least has stated that they will not permit the government to examine and confiscate the files of Americans presumed to be innocent. Reasonable suspicion must be established. However, the Washington Times also notes that “reasonable suspicion” is a lower standard than “probable cause” which would require a search warrant before data can be examined and retained. Nevertheless, the court has ruled “that password-protected files are exactly what the Constitution’s framers had in mind when they wrote the Fourth Amendment protecting Americans’ ‘papers’ from unreasonable searches.”

Privacy advocates still need to be exceedingly vigilant about this issue; but this is, for the moment, a pause in the march to full-blown tyranny. Incidentally, this ruling did not help Howard Cotterman, the defendant in the case that actually sparked the debate.