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Judge limits DHS laptop border searches
by noteworthy at 8:07 am EDT, Jun 11, 2010 |
Declan McCullagh: A federal judge has ruled that border agents cannot seize a traveler's laptop, keep it locked up for months, and examine it for contraband files without a warrant half a year later.
Judge Jeffrey White, of the 9th Circuit Court of Appeals, ruling on case 09-946, USA v. Andrew Samuel Hanson: Because the agents did not find contraband while the laptop was located at the border and, in light of the time and distance that elapsed before the search continued, the court concluded that the search should be analyzed as an extended border search. Given the passage of time between the January and February searches and the fact that the February search was not conduct(ed) at the border, or its functional equivalent, the court concludes that the February search should be analyzed under the extended border search doctrine and must be justified by reasonable suspicion. Hanson was not arrested on January 27, 2009, and for that reason the court finds the government's reliance on the "search incident to a valid arrest" line of cases to be inapposite. Accordingly, because the court concludes that June search required a warrant, and because it is undisputed that the search was conducted without a warrant, Hanson's motion is GRANTED IN PART on this basis.
Rebecca Brock: People say to me, "Whatever it takes." I tell them, It's going to take everything.
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RE: Judge limits DHS laptop border searches
by noteworthy at 8:07 am EDT, Jun 11, 2010 |
July 2006: In an environment where people are constantly streaming across borders, random intrusive searches for any evidence of any crime goes far beyond the notion of border protection for national security purposes and becomes exactly the sort of dragnet that the Constitution was intended to prohibit. This seems rather obvious when you are talking about random forensic analysis of computers.
March 2008: If the possibility that terrorists might do something means that the 4th amendment must be completely disposed of in that context, the 4th amendment must be completely disposed of in all contexts. The fact is that it is astronomically unlikely that law enforcement will happen upon a terrorist plot at random through random searches of laptop hard drives, and searches of laptop hard drives also do not fit into a specific strategic plan to eliminate terrorism. This is another a posteriori attempt at rationalizing the abuse of a loophole.
August 2008: Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed. "The policies ... are truly alarming," said Sen. Russell Feingold, who is probing the government's border search practices.
September 2008: The problem here is that it tells you what you need to get a warrant, but it doesn't tell you when a warrant is required. It has a loophole. It only requires that searches be reasonable, and reasonable means whatever people think it ought to.
October 2008: The so-called Travelers' Privacy Protection Act, introduced in the Senate by Democratic Senators Russ Feingold and Maria Cantwell on Monday, would roll back portions of the current policy, which gives border agents the right to search or seize anyone's laptop as if it were just another piece of luggage.
August 2009: Many civil liberties issues are complicated and require careful deliberation. This one doesn't. Suspicionless search and seizure of laptop hard drives at border crossings violates fundamental American values.
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Judge limits DHS laptop border searches | Politics and Law - CNET News
by Decius at 10:44 am EDT, Jun 11, 2010 |
This court ruling is a victory for those who think that there are constitutional limits on border searches of laptops. It speaks to the concept that they can boot up a laptop at the border and dig around in it but if they keep it for a long time and do a more in depth forensic analysis they need some basis for suspicion: Given the passage of time between the January and February searches and the fact that the February search was not conduct(ed) at the border, or its functional equivalent, the court concludes that the February search should be analyzed under the extended border search doctrine and must be justified by reasonable suspicion.
This is a good result. I agree. The question is exactly where do you draw the line between what falls in the border search doctrine and what falls into the extended border search doctrine, but the fact that a line exists is an important point to make. The government also argues that because Officer Edwards properly seized the laptop, and because the laptop remained in law enforcement custody, she was entitled to conduct a more thorough search at a later time. However, the cases on which the government relies for this argument address the right to conduct a more thorough search of a container as a search incident to a valid arrest, another recognized exception to the warrant requirement... Hanson was not arrested on January 27, 2009, and for that reason the court finds the government's reliance on the "search incident to a valid arrest" line of cases to be inapposite. Accordingly, because the court concludes that June search required a warrant, and because it is undisputed that the search was conducted without a warrant, Hanson's motion is GRANTED IN PART on this basis.
This result is more surprising. I like it, but it seems a little vague. At what point do we cease to be operating under the "extended border search" doctrine and enter the "warrant required" arena? This could happen if there is some sort chain of evidence problem that makes it impossible for the agents to be reasonably certain that no change had occurred to the object since it crossed the border, but I doubt this occurred in this case. Another possibility is that reasonable suspicion expires at some point. You've seized the laptop, you performed a more in depth search, you didn't find anything. You're done. You have no further evidence of wrong doing and no further reason to be suspicious, so you've got to give the computer back. So, its not just the search that would require a warrant but the continued seizure of the device as well - you've got to be able to justify why you are still holding on to it. The question is why did they wait so long to perform the more in depth search, and what sort of timeframes are reasonable? Certainly, six months seems too long. If they are going to perform a more indepth analysis they should be required to do it rapidly - keeping someone's laptop for six months is nearly equivalent to destroying it. |
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