Watch Live: Congressional Hearing on IRS Scandal

Live Now on TheBlaze Radio: ‘The Buck Sexton Show’

Government

Court Rules Customs and Border Protection Does Not Have the Right to Search Electronic Devices Without Reasonable Suspicion

Mar. 9, 2013 5:00pm Christopher Santarelli

A U.S. Customs and Border Protection officer at the Port of Nogales / U.S. Customs and Border Protection

The 9th Circuit Court of Appeals has ruled that Customs and Border Protection officers do not have the right to confiscate or download every laptop or electronic device brought into the U.S. without “reasonable suspicion.” A report from the Department of Homeland Security Office of Civil Rights and Civil Liberties drew criticism from the ACLU and other Civil Liberties groups last month after it was announced that the office would uphold ICE and CBP’s authority to conduct “suspicionless and warrantless” searches of electronic merchandise held by travelers at the border and “its functional equivalent.”

The Washington Times reports that the court ruled Friday that people have an expectation that their data is private and that the government must have reasonable suspicion before it starts to do any “intensive snooping.”

The decision overturned a lower courted ruling in U.S. v. Cotterman, now barring evidence from a child pornography trial obtained from a password-protected hard drive confiscated during a border search.

While the ruling appears to be win for privacy advocates, Kevin Gosztola of Firedoglake notes that the case leaves open what permits enough “suspicion” for border agents to conduct an extensive search of electronic devices.

The result of the ruling is the judges appear to have concluded there should be a “reasonable suspicion” standard for forensic examination of devices beyond the initial search at the border to protect at least some of a person’s privacy that has not yet been violated. The ruling also found “password-protected files” should not be considered suspicious. But, the standard for establishing “reasonable suspicion” that led the court to reverse a previous ruling seems to be considerably weak.

New York University’s Brennan Center for Justice served as counsel for amici in the case, and said in a statement that the Court’s decision Friday was a “watershed ruling” that “drew a line in the sand recognized that the vast amount of personal information and sensitive data on laptops, cell phones, and other electronic devices is worthy of Fourth Amendment protection.”

An attorney with Electronic Frontier Foundation, which also participated in the case as amici, told POLITICO “We’re happy to see the court create some restrictions on the government’s ability to search at the border. We’ve long worried that the border can be a free-for-all zone at some times, so we’re happy to see the court recognize that that doesn’t have to particularly be the case, particularly when it comes to electronic devices.”

In CONTROL, Glenn Beck presents a passionate, fact-based case for guns that reveals why gun control isn’t really about controlling guns at all; it’s about controlling us. Find out more HERE.

Back to The Blaze »

Comments (37)

jessieH
Posted on March 11, 2013 at 12:20pm
And yet they have no problem searching American Citizens.

Report this comment
Log in to Reply Reply
DaveChurch
Posted on March 11, 2013 at 12:11pm
…and of course DHS and CBP will immediately issue a cease and desist order…the Admin NEVER ignores a high court ruling.

Has anyone seen a response from Big Sis yet?

Report this comment
Log in to Reply Reply
watashbuddyfriend
Posted on March 10, 2013 at 7:04pm
What is the 9th Circuit Court of Appeals even being concerned about this matter?

Report this comment
Log in to Reply Reply
freelancer91
Posted on March 10, 2013 at 5:07pm
Was anyone else baffled by the layout of the keyboard in the picture for this article on the front page?

Report this comment
Log in to ReplyReply
- dissent
  Posted on March 11, 2013 at 7:53am
  It’s called the QWERTZ layout. It’s common keyboard layout in non-English speaking Europe.
  
  Report this comment
- Panglossian
  Posted on March 11, 2013 at 11:25am
  Yeah that’s weird… that’s not where “Y” should be or the …
  
  Report this comment
Arshloch
Posted on March 10, 2013 at 4:19pm
Remember judges, da Gestapo always gets even when thwarted.

Report this comment
Log in to Reply Reply
sinner-saint
Posted on March 10, 2013 at 1:31pm
The Constitution has not been amended ye so nothing has really changed even though unconstitutional laws have been made. the laws are illegal. They must have a search warrant, so make them get one.

On the flip side, don’t keep any data on your computer HDD that you don’t want anyone else to see/access. You can easily encrypt files and transport them over the Internet to another computer stateside before coming back into the U.S. or store your data somewhere else on a chip……hide encrypted files in files……….hide them on encoded papers……….their are all kinds of ways to hide/secure data……if you know what you are doing. There’s no need to carry important data on your computer or smartphone when leaving/entering the country. Use webmail or IMAP do you don’t carry emails with you. Keep a restore disk with you and wipe the drive with several passes (22 to 28 times)………there’s all kinds of things one can do to secure their data.

Report this comment
Log in to ReplyReply
- dissent
  Posted on March 11, 2013 at 8:08am
  You’re kidding… 22-28 times is definitely no longer recommended. These days, that only serves to shorten the life of the drive With modern computer drives, 3 passes is more than sufficient for destroying data to the point it can no longer be recovered even with electron force microscopy. Your best bet is to simply use 256 bit AES full disk encryption so no one can even access your computer without the password. AES is good enough for the military (as in it’s yet to be cracked), it’s good enough for me. If you’re extra paranoid, you can use multiple cascading ciphers to encrypt, but that really is overkill.
  
  Report this comment
Spitfire1938
Posted on March 10, 2013 at 1:00pm
So what? The 9th circuit is playing Administration beautician; trying to put lipstick on a pig! By the time the decision is appealed, if it is appealed, the Supreme’s will have been safely compromised! Otherwise…. this decision will ‘just’ be ignored, like ALL the other decisions our “Chosen One” disagrees with! America is gone folks… now we live in america, home of the slave! Long live america!

Report this comment
Log in to ReplyReply
- Spitfire1938
  Posted on March 10, 2013 at 1:13pm
  Hmmm, love how ‘auto correct’ removed the ‘K’ from amerika! It seems even our computers are conspiring against us!
  
  Report this comment
ECOMCON
Posted on March 10, 2013 at 12:53pm
Since I’m a Canadian and travel regularly across the border that’s 20 minutes away from my house, I have been a bit worried that my electronics would either be seized or snooped through. This wasn’t always the case because until a couple of years ago, I didn’t even need a passport to visit the land of the free. It was the world’s longest undefended border and for good reason. But some nutbar jihadist just had to try and enter the US while traveling on a ferry from Victoria BC to Port Angeles Washington with a truck full of explosives destined for LAX. So it took almost 10 years and the two governments finally brought in the passport rules.

Anyhow, why I have been worried for a while is because on my electronics there are e-mails and links between me and The Blaze, Freedomworks, and now the Tea Party Community site. Most likely by DHS definition I would be labelled as a right wing terrorist, and since I’m a foreign national, I’d either be chucked away and the key lost or I’d be banned from ever entering your country again. Neither of which I would be too happy about.

So, even though this ruling is a little weak, it’s better than nothing.

Report this comment
Log in to ReplyReply
- Spitfire1938
  Posted on March 10, 2013 at 1:07pm
  God bless you sir… and God bless Canada! We share a long most interesting History together and I for one, Love you!
  
  Report this comment
servant100
Posted on March 10, 2013 at 11:08am
LOL…lets see here…Three years ago the Fed hollowed out a Mountain in Utah and build a NORAD style facility to store virtually unlimited amounts of data. I was a FED during the 90′s and it was common knowledge that the NSA facility next to Dulles International was recording EVERY SINGLE CELL PHONE conversation made in the Continental US.. Yes they said they were only paying attention to the international phone calls…but the data mining showed in the 9/11 hearings directly contradicted that prevarication.

With the Biden drafted Patriot Act all bets were off. Every internet communication, every e-mail, every cell phone call is not tapped and stored by los Federalies at this Utah facilities. Uncle Sugar has created entire banks of parallel processing Super Computers to “data mine” the heck out of your personal information.

And a SINGLE pathetic court decision is going to halt or even limit this headlong free-fall rush into a Tyrannical police state?

LOL you people really are total Forrest Gump style fools….!!!

Report this comment
Log in to ReplyReply
- Spitfire1938
  Posted on March 10, 2013 at 1:36pm
  I was stationed at NSA’s Army branch, 14th USASA, Brady AB, Japan in the late 50′s survieling China’s airwaves… before the advent of any ‘real’ technology. We were very, very capable then and I could not agree with you more!
  
  Report this comment
Snowleopard {gallery of cat folks}
Posted on March 9, 2013 at 7:35pm
The Ninth Circuit court actually did something right for a change? I guess even the courts do understand when the government oversteps its bounds. Of course for the TSA and Homeland Security it will not matter for they are above the law in their own eyes.

Report this comment
Log in to ReplyReply
- Bronco II
  Posted on March 10, 2013 at 9:17am
  Don’t let them fool you they have to protect their own wicked selves and the progressives info too so that is who they are really looking out for.
  
  Report this comment
- SgtB
  Posted on March 10, 2013 at 11:00am
  This ruling is a farce. Any officer can come up with any number of things that would be ruled as a reasonable suspicion. This goes entirely against the 4th amendment.
  
  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  
  It says it right there. You should not have to subject yourself to ANY government searches of your property unless a warrant has been issued in a court of proper jurisdiction. Make the TSA get a warrant before they search you next. It is your RIGHT! Oh, and probable cause does not mean that an LEO gets to search you right then and there. They must get a court ordered warrant before they can legally search you. You know, all of this stemmed from our founders being harassed and searched on a daily basis by their own government. I think it about time we stop subjecting ourselves to the same.
  
  Report this comment
proliance
Posted on March 9, 2013 at 7:20pm
If reasonable suspicion is needed, it will be manufactured. The suspect was “nervous,” “wouldn’t answer questions” or ” did not make eye contact.”

Report this comment
Log in to ReplyReply
- Advection
  Posted on March 9, 2013 at 9:55pm
  Yeah. “They acted nervous” is a favorite standby. It’s 100% subjective, kid tested, and Der Fuhrer approved!
  
  Report this comment
Stoic one
Posted on March 9, 2013 at 7:17pm
Now if we could only have the same thing done to the TSA….

Report this comment
Log in to Reply Reply
chips1
Posted on March 9, 2013 at 7:11pm
They had to rule that way to protect Obama’s Blackberry. That’s where all of the plans are kept.

Report this comment
Log in to ReplyReply
- ICSPADES
  Posted on March 10, 2013 at 7:28am
  The only thing on the taters blackberry is Angry Birds. That is all he is fit for – GAMES.
  
  Report this comment
soybomb315_II
Posted on March 9, 2013 at 6:32pm
looks like you have more rights crossing the border than you do sitting at home

Report this comment
Log in to Reply Reply
progressiveslayer
Posted on March 9, 2013 at 6:28pm
Maybe there’s a glimmer of hope for the constitution and bill of rights after all.

Report this comment
Log in to Reply Reply
DougHuffman
Posted on March 9, 2013 at 6:27pm
Preemptively deny the nonconsensual cursory search with Full Disk Encryption – so that the passphrase must be entered before the OS will even boot.

https://en.wikipedia.org/wiki/Full_disk_encryption

Use an effective passphrase.

Remove all traces of previous content with a many pass disk wipe of unused space.

In the limit, both are merely delaying tactics. Time being money they make the intrusion too expensive to be regarded as cursory, thus, hopefully gaining the protection of the courts and the Constitution.

Separate a high value HDD from its computer and post it ahead of the traveler. Travel with an inoccuous throw-away HDD installed. Do not trust “the cloud” as one would not trust G00gle.

Report this comment
Log in to ReplyReply
- DougHuffman
  Posted on March 9, 2013 at 6:55pm
  I have four $80 HDD for this computer. Old Windoze XP OS and data unprotected. This new HDD with FDE Fedora and almost no data or history – it’s a week old. A virgin M$ WinXP and a virgin Fedora 18.
  
  Report this comment
TJexcite
Posted on March 9, 2013 at 6:12pm
This ruling needs to go farther. A cop in the heart of country can not stop you for speeding and then look at your cell phone for who you just texts, call and what photos are on it. Then when they find a text in code language that leads them to “reasonable suspicion” that illegal activity was taking place. They get a warrant for your home based on the text from your phone that was searched on a traffic stop but that search of your phone was against the 4th amendment. Then when they find nothing as the text was quoting a song.

Report this comment
Log in to Reply Reply
crusaderx9
Posted on March 9, 2013 at 6:04pm
The Federal government TAKES AS MUCH FREEDOM AS THEY CAN away from the citizen at every opportunity.

Senator Rand Paul was correct to question the Federal government and the Regime because he knows it will turn against the citizen whenever it can.

The War against We the People has begun…

Report this comment
Log in to Reply Reply
resme
Posted on March 9, 2013 at 5:53pm
Wow. The courts actually invalidated something.

Report this comment
Log in to ReplyReply
- RJJinGadsden
  Posted on March 9, 2013 at 6:21pm
  RESME, I was just as surprised. Some judge must have taken another glance at the 4th Amendment.
  
  Report this comment
- The-Monk
  Posted on March 9, 2013 at 6:27pm
  Hi guys,
  
  I think they will just say that being Human makes one suspicious.
  
  Hey RJJ, did you notice that photo of Lenin in the other story? Read my post.
  
  Report this comment
gyro
Posted on March 9, 2013 at 5:47pm
not good
I know its all the infrigment on rights argument thing but if a person from uotside usa enters they should be given to all searches
Now us residents coming and going ? Search them to ? Dont like it stay home?

Report this comment
Log in to ReplyReply
- freeberty
  Posted on March 9, 2013 at 6:04pm
  Gyro,
  
  Totally agreed, the government should take away what little rights we have left, so you can feel safe.
  
  Report this comment
- soybomb315_II
  Posted on March 9, 2013 at 6:34pm
  Gyro – that is an ignorant thing to say. If nothing else, read the article headline……”reasonable suspicion” is not hard to demonstrate and quite frankly, it should be even harder than that
  
  Report this comment
- Shasta.Red.Banks
  Posted on March 9, 2013 at 8:24pm
  Gyro, sometimes the safety you seek need to be fought for.
  
  Report this comment
- Bronco II
  Posted on March 10, 2013 at 9:25am
  Those who give up Liberty for security deserve neither and will lose both.
  
  Report this comment

It appears that you have Javascript Disabled. Please enable Javascript in your browser preferences for a better user experience on TheBlaze. You can not comment without Javascript enabled.