Sunday, March 10, 2013

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

 Constitution-free Zone
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.
The court upheld his laptop search in 2007, which reportedly revealed numerous child pornography images. (Source)
Main source for this update:

Other sources:

Read 5 Mandatory Steps For Protecting Data From Eavesdroppers

Read other articles by Joe Wright Here


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Anonymous said...

The time for insurrection has come and gone-
Now there is no chance to end the lawlessness of the current Corp-Gov.
The government and their corporate benefactors have granted themselves complete immunity from all Laws while the 'little people' are subjected to more and more of them at an ever higher and more strict standard.
We have lost our rights to free speech, association, being secure in our persons and property, the right to a trial and even lost our right to life, should a President or his lackey decide you should die, you die, all based on secret evidence and with ZERO opportunity to establish your innocence.

What is free or brave about America now?......... anyone?

Hide Behind said...

Supposedly there is still a Bill of Rights and a Constitution; Supposedly thete is a Congress that represent voters that sent them there; Supposedly there is an equal but seperate Supreme court our Congress appointed people to that are supposed to be the word of law on both constitutional law of congress and now an equal but seprrate body. Called EXecutive and supposedly legalizess all three bodies actions.
NO! I know thereis supposed to be but that actually none of the above are whst they are supposed to be but one thong that they all are is a lie.
I luvewithin the 100 miles of dictatorship coverage where there is laws but no representation of legality other than what all three branches of government say they the are.
Who the hell we kidding?
Thebast majority of those who wpuld even pack a laptop to a border to ctoss surrendered their privacy of it and cell phones long ago.
IF they are willing to let strangers look and touch their private parts and look feel into any body cavity so they can fly somewhere to play what and the hell does privacy mean.
You can keep on writing and whining but what has been in emplaced and is in place is a reality you cannot vhange.
You cannot change or stop whatever is decided by powers you know not of want to enforce.
So shut up be prepared to bend over what youare is no more than a laptop dancer is.
For a fee you will agree to dance to the tunes they play.

Anonymous said...

The images and characters on TV are free and brave.............and fictional.

Nothing decent is free or brave or honest. Hell even the dirty trolls use programs to mess up their spelling to make them look real. It is all so fake.

Anonymous said...

That 100 miles will become 200, then 300.
Finally it will meet in the middle.

Hide Behind said...

Hear is something that article skips when it mentions popuation numbers that live within that border; Over 90% of all militia members, both organized and unorganized, live within those boundarys.
WE believe that around 85% of all weapons and weapon owners live within that area.
The major militia formations know this.
Almost all legal to own aito weapons are I'm that area.
Look at maps of eastrrn and douthern coast and rembrr border begins on fry land ans in places like Wiisvonsin and michigan border it covers damn near 1/3 of Michigan and actually runs up Mississipi and Columbia rivers 25 miles and so foes it Ny harbor.
The militias will never dare to mobilize and we lnow they already monitor all tele coms and even at times play games on it to let them know.
US,weoll what used to be US is up sh.. creek without a paddle and has no Captains on dares command the ship.
State of Utah border reaches it and look whete it is at.
Clear bavk to Clinton and Carnivore intel snoops UTAH National guard was full tome language interpreters. Now home of massive prison and "Resettlement Camp and largest intel computer system in world.
Uou lost and desrvedly so.

Hide Behind said...

Florida is aost 100% covered; only thin strip in middle to top and has been covered for last 12 years.
ILLEGAL? Nope they recently made it legal.

Anonymous said...
This comment has been removed by a blog administrator.
Co-opted Confederate said...

Seems like a States rights issue to me and we all knoe that the first Civil war was fought over states rights and not "slavery as the liberal carpet baggers and pork barrelers would have us believe. It will probably be the cause of the second and the third also. Kick your state legislators where it will do the most good and tell them and your governor your mad as hell and won't take it any more. "Do the right thing" The Constitutional Republic our fore fathers created for us is in dire jeopardy from the current administration and all admistrations since FDR's first.

Hide Behind said...


Am I missing something? Is there a FN Logic gap here?
What the hell Did we do before DHS was given all these FN Superpowers.
What the hell, "Probable cause" is the most overabused by cops and judges that protect the cop system and has cost a hell of a lot of americans tO get Harrassed, manhandled, and their privacy invaded as cops go on "Fishing "Expeditions.".
Encryption cannot solely be used but can count as a point ttowards reasonable suspicion? WHat kind of convoluted mind came up with that line of reasoning?
More of the idiotic; I don't support the war just the troops.
They gave away not one damn thing and gave legality to a fn crime.

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