Decius wrote:

The routine border search of Romm’s laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under “official restraint.”

Finally, and for the first time in his reply brief, Romm argues the search of his laptop was too intrusive on his First Amendment interests to qualify as a “routine” border search. See generally Okafor, 285 F.3d at 846 (noting the difference between routine and non-routine searches). We decline to consider this issue here because “arguments not raised by a party in its opening brief are deemed waived.” See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Therefore, evaluating the border search of Romm’s laptop solely as a routine search, we hold the district court correctly denied Romm’s motion to suppress.

Here the 9th blows right past the question of whether laptop searches are "routine." They assume it is. Romm's lawyers raise some questions about that, and the 9th refuses to consider them for a technical reason. They are underestimating the implications of their decision.

[Seems that's true. Seems too that we all owe Romm's lawyers a smack in the grill. They left what is probably the most relevant argument -- that laptop searches are an invasion of privacy severe enough to require the higher standard set for non-routine searches -- out of the fucking brief. Yeah, it sucks that the court acted on a technicality, but the rules exist for a reason. There's a reason you have to take 3 extreme years of school and then pass the bar to become an attorney.

Again, I'm not happy with it, primarily because I think that argument would have found some traction, but really, this is a major fuck up on the part of the legal team.

-k]

Decius wrote:

The routine border search of Romm’s laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under “official restraint.”

Finally, and for the first time in his reply brief, Romm argues the search of his laptop was too intrusive on his First Amendment interests to qualify as a “routine” border search. See generally Okafor, 285 F.3d at 846 (noting the difference between routine and non-routine searches). We decline to consider this issue here because “arguments not raised by a party in its opening brief are deemed waived.” See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Therefore, evaluating the border search of Romm’s laptop solely as a routine search, we hold the district court correctly denied Romm’s motion to suppress.

Here the 9th blows right past the question of whether laptop searches are "routine." They assume it is. Romm's lawyers raise some questions about that, and the 9th refuses to consider them for a technical reason. They are underestimating the implications of their decision.

No, they're leaving that as an avenue for someone else to explore. Appellate courts are rather odd in some ways. The basic rules are that either an argument made was not given correct weight or that some other part of the issue was incorrect, but at the bottom line, the questions raised at the appellate level are the same ones raised at the trial level. In this case they assume the search is routine because it was not an issue originally raised. Based on past decisions by the 9th Circuit, I would guess that had the issue been raised at the trial level, the 9th would have jumped all over it and ruled it not a routine seach.

That leaves a completely different question, which then becomes, would a non-routine search be reasonable? That question can go either direction, but if I had to guess what they would decide (and just for fun, let's) I would say that they would rule it "reasonable" so long as it did not place undue strain upon the party in question, meaning, if they could search the laptop in say half an hour or an hour, that would be fine, but if they took the laptop and weren't going to return it for a month, that would be ruled an unreasonable seizure.

This is some very fuzzy territory, and the 9th is known for its warm fuzzyness.

Mike the Usurper wrote:

No, they're leaving that as an avenue for someone else to explore.

I understand, thats true. I'm not satisfied that I like the idea, however, IANAL. While we're waiting for someone else to explore this fascinating intellectual question people are having their computers searched at random.

A non-routine search can be reasonable if there is reasonable suspicion, which is a very weak standard, but not the same as random. In this case they almost certain meet that standard, but I'm OK with that. I'd just prefer that these kinds of searches not be performed at random. People should generally expect that their laptops will not be subjected to forensic analysis at the border.

The point you made about inconvenience is a possible place where they might draw the law... For example, it might be considered "routine" to list someone's browser history but non-routine to fire up a copy of EnCase. I'd personally prefer that the line be draw with regard to impact on privacy, and not on the traveller's convenience. There are several reasons for this, foremost among them is that technology improvements over time will increase the instrusiveness of the searches possible without inconveniencing the traveller.

But, honestly, I don't like this idea of random border searches at all. I think we've already slid way, way down the slope here. The idea that disassembling someone's car is ok to do at random seems ridiculous, and I'd like to see this whole thing reigned in.

Decius wrote:

Mike the Usurper wrote:

No, they're leaving that as an avenue for someone else to explore.

I understand, thats true. I'm not satisfied that I like the idea, however, IANAL. While we're waiting for someone else to explore this fascinating intellectual question people are having their computers searched at random.

A non-routine search can be reasonable if there is reasonable suspicion, which is a very weak standard, but not the same as random. In this case they almost certain meet that standard, but I'm OK with that. I'd just prefer that these kinds of searches not be performed at random. People should generally expect that their laptops will not be subjected to forensic analysis at the border.

The point you made about inconvenience is a possible place where they might draw the law... For example, it might be considered "routine" to list someone's browser history but non-routine to fire up a copy of EnCase. I'd personally prefer that the line be draw with regard to impact on privacy, and not on the traveller's convenience. There are several reasons for this, foremost among them is that technology improvements over time will increase the instrusiveness of the searches possible without inconveniencing the traveller.

But, honestly, I don't like this idea of random border searches at all. I think we've already slid way, way down the slope here. The idea that disassembling someone's car is ok to do at random seems ridiculous, and I'd like to see this whole thing reigned in.

yep. I agree. I was just taking a stab at what the 9th Circuit might say is reasonable. At a personal level, I think the whole thing is a giant reeking pile of crap, I was just looking at the legal standards.

Frankly, it all sucks.