Court: Border search of laptops without cause permissible by law

By Ed Oswald, BetaNews

April 24, 2008, 6:36 PM

In a decision that could anger some privacy advocates, a US appeals court said that border and airport security agents can search laptops without cause.

Surprisingly, the unanimous 3-0 decision came from the Ninth US Circuit Court of Appeals, which has otherwise been a target of criticism for its alleged liberal bias.

The decision overturns a US District Court ruling stating that agents must have reasonable cause to perform a search of electronic devices. That case was brought by Timothy Arnold, a 43-year old teacher and California resident.

In Arnold's case, in 2005, border agents searched his computer after he had returned from the Philippines, finding it to contain child pornography. While he was released at the time, federal officials obtained a warrant for his arrest two weeks later.

Federal laws already allow border guards to search diaries and other personal items without cause. The Justice Department argues that electronic devices are no different, and should still be searchable as a matter of national security.

The appeals court argued that the Supreme Court had already ruled that there was no difference between searches of electronic devices and something like luggage, which is regularly done today.

Arnold's lawyers said they would appeal the verdict, which may now either be elevated to the Supreme Court, or stayed pending a petition for a rehearing before an appeals court.

The Electronic Frontier Foundation, which filed an amicus brief in support of Arnold's case, disagreed that laptop searches were any different from other common border searches.

"Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes," EFF civil liberties director Jennifer Granic said. "This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways."

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By BrokenHALO

edited Apr 25, 2008 - 1:54 PM

WAIT!!! They want to search my laptop at the border only to find my collection of Paris Hilton sex videos!

YET it takes a FEDERAL JUDGE to ORDER the WHITE HOUSE to come clean on the 5 MILLION missing emails that could answer questions about the outing of CIA AGENT Valerie Plame and the questionable firing of nine U.S. Attorneys????? AND STILL NO CLEAN ANSWERS!!!

IN WHAT WORLD IS THIS OK?!?!

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By George43

posted Apr 25, 2008 - 11:28 AM

Immediate cavity search for all incoming oughta be mandatory. Far as hardware goes, should be confiscated at entry , don't care where it was purchased, was probably build in chink land!
And what is this garbage being quoted as a bill of rights, does not exist except in the little minds of you commie's
Geez' these leftie commies need a goddam history lesson, look at the statue of "liberty", goddam built by french ****s need any more be said.

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By 8189720

posted Apr 28, 2008 - 8:17 AM

George was drunk when he wrote this.

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By esh3

posted Apr 27, 2008 - 7:37 AM

huh?

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By improvelence

posted Apr 25, 2008 - 12:40 PM

What in the hell are you babbling about?

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By DatabaseBen

edited Apr 25, 2008 - 11:52 AM

I don't think the searching laptops without reasonable cause or a search warrant is legal, although the monkey court states otherwise.

If the laptop owner had the laptop password protected and the agent could not search it, then what should happen next?

Should the agent seize the laptop or should the agent(s) take the owner into custody and water board the owner until they get the passwords(s) or the decryption key?

If the laptop was shipped via FedEx instead of being hand carried over the border, would the customs agents have a right to inspect the laptop and read the personal data on the disks or utilize a password cracker to gain access to the laptop?

What if the agent didn't find child porn and instead found that the data was all in Islamic language. Does this mean that the owner is a terrorist?

What if there was absolutely nothing criminal of the owner and there was nothing on the laptop illegal but the owner refused to provide the password to the inspector because the owner exerted their rights to privacy. Is withholding a password or decryption key illegal.

What if there were engineering diagrams or pictures, would the agent know the difference between diagrams depicting a nuclear power plant or a nuclear device? If so, then does this imply the owner was going to use the plans to make a bomb?

What if the laptop was a bot and the owner had a file sharing program for sharing music and didn't know porn was being downloaded in the background.

What if the laptop had copyrighted music and movies on it. How would the agent know the difference between black marketed or illegal downloads and the freedom and legal right to make a copy of their purchased music or movie for personal use?

What if the owner was also an agent of the government who investigates child porn and has multitudes of child porn on their laptop, would this be legal or ethical as well?

What if the inspector found a letter describing the hatred of America and the President and wrote down imaginary ways to destroy both. Would this constitute terrorism or would be legal because the verbiage is for publishing a book.

Or what if instead of finding porn the inspector found a picture of the president with a painted mustache or perhaps a large red x inside a red circle covering the image. What should this then mean for the inspector? What would it mean if the owner of the laptop was a 12 year old kid or a muslim or a Baptist preacher that thinks America is damned?

The examples go on and on. Child porn is illegal and immoral and I do not dispute that. But checking luggage and finding physical magazines or photos is not the same as logging into a personal computer and reading personal data. Doing so without a warrant cannot be justified.

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By bourgeoisdude

edited Apr 25, 2008 - 6:09 PM

But checking luggage and finding physical magazines or photos is not the same as logging into a personal computer and reading personal data. Doing so without a warrant cannot be justified.

Ah...that is the question. What makes a laptop more private than any other personal belongings? Every one of your arguments could be said about reading someone's personal journal, could it not? Are those protected too? According to the article, they are not. In fact that is the argument that the Justice Department uses, and I agree.

If the laptop owner had the laptop password protected and the agent could not search it, then what should happen next?

That's not what the court is dealing with here, is it?

Should the agent seize the laptop or should the agent(s) take the owner into custody and water board the owner until they get the passwords(s) or the decryption key?

Clever spin, but again that is not the issue here. That would be another legal matter. For now we are dealing with the information being readily available.

If the laptop was shipped via FedEx instead of being hand carried over the border, would the customs agents have a right to inspect the laptop and read the personal data on the disks or utilize a password cracker to gain access to the laptop?

These are all good questions (except the water boarding point was just a tad over the line), but they are not questions that the 9th Circus Court were dealing with.

What if the agent didn't find child porn and instead found that the data was all in Islamic language. Does this mean that the owner is a terrorist?

What a terribly worded question. Unless I am badley mistaken, there is no "Islamic" language. I will assume you mean what would happen if the laptop has several passages from the Quran, or material clearly indicates that the owner is of Islamic faith.

Well--you are assuming that the government will overstep its authority and claim the owner is a terrorist, etc., and while this may happen, could they not say the same thing about reading their diary? What is the difference?

What if there was absolutely nothing criminal of the owner and there was nothing on the laptop illegal but the owner refused to provide the password to the inspector because the owner exerted their rights to privacy. Is withholding a password or decryption key illegal.

Again good questions. I doubt the courts would hold that Border searches could "force" the owner to give his/her password. I don't know the law in that area. Again, that would lead to way too many cans of worms opening up.

What if there were engineering diagrams or pictures, would the agent know the difference between diagrams depicting a nuclear power plant or a nuclear device? If so, then does this imply the owner was going to use the plans to make a bomb?

What if there were diagrams in their diaries? It appears you are questioning the search of any luggage, which is fine, but not what you claim in your final paragraph.

What if the laptop was a bot and the owner had a file sharing program for sharing music and didn't know porn was being downloaded in the background.

This is a valid and relavent question. It is also a fair cause for concern.

There are ways to determine if this is the case, ultimately, but I am unsure if border and airport security agents have the resources available to them. If they do not, then they need them.

What if the laptop had copyrighted music and movies on it. How would the agent know the difference between black marketed or illegal downloads and the freedom and legal right to make a copy of their purchased music or movie for personal use?

This should not be something that the security agents should worry with. They are supposed to be searching to protect against terror attacks/flight risks/etc., and should not concern themselves with this type of stuff. For that matter, they shouldn't be looking for child porn either. If they happen to run accross illegal downloaded content, they could report it to the Feds, and from there the Feds would determine if they needed to do something about it. Remember the person in this case was not arrested on the spot but arrested later. Anything short of clear evidence of flight risk/terror activity should perhaps be reported to authorities but should not cause them to be arrested on the spot.

What if the owner was also an agent of the government who investigates child porn and has multitudes of child porn on their laptop, would this be legal or ethical as well?

Okay, that's a little out there...

Again this for authorities to handle after the fact, not on the spot. For that reason, they would of course be cleared of any wrongdoing. Not that anyone would actually have the child porn on their laptop, that stuff would no doubt be kept in a computer database on a server.

What if the inspector found a letter describing the hatred of America and the President and wrote down imaginary ways to destroy both. Would this constitute terrorism or would be legal because the verbiage is for publishing a book.

So you are discussing this outside of the laptop argument...

I don't have patience nor the years required to argue back and forth on this, so you'll have to excuse me for the time.

Or what if instead of finding porn the inspector found a picture of the president with a painted mustache or perhaps a large red x inside a red circle covering the image. What should this then mean for the inspector? What would it mean if the owner of the laptop was a 12 year old kid or a muslim or a Baptist preacher that thinks America is damned?

I'll leave that ridiculous statement alone.

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By Avion Airplane

posted Apr 25, 2008 - 1:28 PM

Very GOOD POINTS My Friend....

I felt my individual rights as an American were going down the tubes when a Male TSA agent got his jollys off feeling my wifes breast last year. We could have asked for a female TSA but none were available..

sad world we live in

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By DatabaseBen

edited Apr 25, 2008 - 7:05 PM

thanks.

unfortunately, when it comes to constitutional law it is either a all or nothing situation.

if laptops are going to be searched for one thing, then they have to be searched for everything that is illegal.

what i suggest is to simply password protect and encrypt your computer.

i don't think the border patrol has the constitutional right to demand your password or decryption key, though they may have a right to simply ask.

if so, then laugh hysterically and claim the 5th.

it seems reasonable that if they use a password cracker without a warrant, then the case would be nothing short of an "illegal search and seizure"

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By edel2324

edited Apr 25, 2008 - 10:52 AM

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
Benjamin Franklin

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By tscar13

edited Apr 27, 2008 - 8:16 AM

True good old Ben did say that but he lived in a different world when you didn't have to worry about planes flying into buildings and killing close to 3,000 people. He was able to spend his time in peace in Paris drinking wine and playing the French lady field.

I agree the TSA employees have to have more training and we, as a country, need to understand that no one in a public setting has absolute freedom. MY freedom has to be balanced with everyone else's freedom.

The challenge we face in this century, at least at the moment, is how to strike a balance between freedom and the very real need to protect all Americans whether rich or poor and this, like the great American experiment, is an ongoing process. To me, the most important line in our constitution is the first line. The writers realize that they were not creating a perfect form of government but an American experiment that must have the ability to change as the world changes without losing the core ideals. That is the challenge today and will always be the challenge as the world changes.

Has there been abuses by this President? Yes. Should he have been impeached for these abuses? Yes. But we live in an imperfect world and all of us always need to understand that the Great American Experiment means that "We, the people" need to change as the world changes.

Finally, as to this case, I happen to agree with this Liberal Appeals court. If you read this article, you notice that the Border officials didn't arrest the man instead they turn the information over to the FBI to check out and let them make the decision. I believe it was this point that a traditionally liberal Appeals court made their 3-0 opinion.

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By improvelence

posted Apr 25, 2008 - 12:41 PM

Ben Franklin was a rebel indeed, he liked to get naked while he smoked on the weed.

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By bourgeoisdude

posted Apr 25, 2008 - 9:58 PM

???

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By preinterpost

posted Apr 25, 2008 - 9:39 AM

How convenient that cloud storage is about to go mainstream.

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By kcalvert

edited Apr 24, 2008 - 8:27 PM

Jennifer Granic said that the 4th Amendment "constrains police from conducting arbitrary searches". While that is true, there is reasonable cause for laptops to be searched in this case. The reason is that it is targeted at a group of people, in this case those that cross the border. The 4th does not protect a group if some members of an identifiable group (which make it not arbitrary) has members that have been shown to be conducting illegal activities. In that case there is probable cause.

I am concerned that groups like the EFF are willing to allow these things that hurt our country to go on. Even worse, they take actions that support these activities. Are they supporters of child pornography and the like?

If I am a traveler and I have nothing to hide, why should I be concerned? Yes, it is less convenient but losing some convenience seems to be a small price to pay to protect our country.

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By xyzcb1

posted Apr 25, 2008 - 12:15 PM

"If I am a traveler and I have nothing to hide, why should I be concerned? Yes, it is less convenient but losing some convenience seems to be a small price to pay to protect our country."

Are you serious? I am not a thief or criminal, why doesn't the bank or the federal reserve allow me to go into their safe or share their password with me?

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By sucrets

posted Apr 25, 2008 - 11:40 AM

bad people exist in civilization,
i exist in civilization,
therefore i must be automatically considered bad thus nullifying the provision in the 4th amendment.

nice argument, chief. society shouldn't work this way.

"those who cross borders" does not only include those who actively cross borders but any who could potentially cross borders.

remember when "innocent until proven guilty" meant something? me neither.

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By rhaimus

posted Apr 25, 2008 - 10:28 AM

Its great that they caught some one with child porn like this, but it still isn't right. Comming home from vacation some fool making $12/h working at the airport decides at random its time to search your computer. Comes accross an ercrypted file and wants to see the contents you need to open them for him, hey look there is the naughty vacation photos that you took. Not only that there is issues with leaked business infomation, internal memos, and a lot of other information the personal and business travilers may have on there pc. How much right do they have. Can they force you to decript encrypted data. People should still have an expected right to privacy in life. Especialy if they arent from the US and just arriving there for a couple of days.

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By Second Shadow

posted Apr 25, 2008 - 9:09 PM

If the "fool" is capable of that level of analysis over an encrypted file, he shouldn't be making only $ 12/hr ...
Anyway, just about anyone (with a brain) can easily defeat such a shallow search. Two words: plausible deniability

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By DigitAl56K

edited Apr 24, 2008 - 9:00 PM

"If I am a traveler and I have nothing to hide, why should I be concerned?"

Are you SERIOUS?!

You, sir, have been brainwashed by your government and have lost sight of what it means to be an American and the rights and protections granted to you by your forefathers who fought to create the country you enjoy today.

Why don't you just turn the place into Nazi Germany? "Papers, please.". You have nothing to hide, right? Except you do, because every day your government adds individuals to the terrorist watchlist (now adding nearly 20,000 names per month) and does not disclose their reasoning, every day they tap the calls of millions of Americans without warrants, every day new laws are passed that strip away your protections. Even if you abide by the law today, it could change tomorrow. And if the government wants to, they can now call you a terrorist suspect and haul you off to prison with no council or right to contact anyone.

It is your attitude and lack of understanding that is slowly but surely destroying your country.

If anyone wanted to bring "illegal" material into the country they could just as easily encrypt it and store it online while they travel.

You have twisted the meaning of probable cause back on itself so that the term is meaningless.

I'm sorry for this rant, but comments like this just make me sick.

Go EFF!

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By zenarcher

posted Apr 25, 2008 - 7:09 AM

DigitAl56K you are absolutely right! The "patriotism" that created the U.S. was far different than blind obedience and submission. The "patriotism" being shoved at us today is not much different than Nazi Germany's definition of "patriotism."

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By Canoro

edited Apr 25, 2008 - 2:41 AM

I totally agree with DigitAl56K, The U.S. is now worse than the KGB era in the Soviet Union, very close to Nazi Germany, and it's on the road to be the country with less respect on privacy of individuals in history.

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By JaDa

edited Apr 25, 2008 - 2:38 AM

@DigitAl56K

one day they will wake up!

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By Hall9000

posted Apr 24, 2008 - 9:24 PM

DigitAl56K, I whole heartedly second your opinion.

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By Second Shadow

posted Apr 24, 2008 - 11:02 PM

me too

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By Ethelred

posted Apr 25, 2008 - 5:21 AM

"Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes,"

Usually I am on the side of the EFF. Not sure on this as the catch is that traditionally the US government has been allowed to search not only your diary but your alimentary canal with only a vague suspicion and no need for a search warrant when returning to the US. So there is no way a judge is going to agree with the EFF on this.

My thought is the guy was an idiot. Not only was he engaging in behavior that endangers children but he was too bloody stupid to encrypt his foul collection. Sounds like a fool and his perversion will soon be parted.

Notwithstanding the specifics I find that when people use lines like "if they had nothing to hide" they make me cringe. Thats the sort of thinking that leads to a Big Brother state. Makes me want to agree with the EFF even when I don't.

Ethelred

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By Digital1021

posted Apr 25, 2008 - 9:55 AM

If the Supreme court allows this to continue I'm moving to a remote part of Canada.....I fought twice in Iraq and getting ready for my third tour to fight for the right to lose privacy. This all started with the passing of the damn patriot act and something tells me this is only the beginning.

Digital-

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By improvelence

posted Apr 25, 2008 - 12:45 PM

This is a sad time for our country. I sure hope a change in policy is coming before it's too late and we get stuck into some 1984 inspired autocracy.

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