DOJ has generally refused to argue that there is reasonable suspicion in order to keep open Supreme Court review if/when the Ninth Circuit takes a narrow view of the exception. Specifically, DOJ has wanted to avoid the situation in which the Ninth Circuit establishes a reasonable suspicion standard, finds reasonable suspicion, and thus prevents DOJ from being able to file a cert petition to reverse the Ninth Circuit’s conclusion that reasonable suspicion is required...

In the en banc decision today, the Ninth Circuit goes on to determine that there is reasonable suspicion and that DOJ therefore wins the case... Ordinarily, then, this would mean that DOJ cannot seek further review: After all, it won the case.

Fascinating.

Indeed.

The long-running friction between the Ninth Circuit and DOJ over how to litigate border search exception cases.

Yesterday, the 9th Circuit Court of Appeals handed down an extremely important ruling on electronics searches at border crossings. After years of writing and talking about this issue I'm very excited to finally see a court take a position that is in-line with what I and many others have been advocating that the policy ought to be.

The court ruled that although customs officials can order you to open up your laptop for them so they can poke around in it manually, they cannot perform a full forensic investigation of the drive without some sort of reason to suspect that you might be guilty of a crime.

The idea is that the contents of your luggage are subjected to search at the border and so the contents of your electronics may be subject to a search at a similar level of intrusiveness. This might mean asking you to boot it up, looking around at the files on the hard drive, looking at the browser history. However, when customs agents seize your laptop from you and mail it off to an analysis center where a team of professional forensic analysts go through it with a fine tooth comb, reading all of the contents and looking even at fragments of deleted data, this is a step far beyond what a "routine" search of physical goods at the border consists of. It should require some sort of suspicion on the part of customs agents and should not be done at random.

Finally, a court has understood the issue well enough to see the distinction between a cursory search through a computer system and a forensic investigation of a computer system and has insisted upon reasonable suspicion in the later circumstance. This is extremely close to the balance first proposed by Mark Rasch in a SecurityFocus column in 2008.

This is probably the best result that civil liberties advocates can hope for under our current border search doctrine. I think it puts searches of electronics in line with the overall doctrine as it exists right now. I therefore see it as a major victory for privacy rights. A result that is more protective of civil liberties than this would require more fundamental changes to our ideas about border searches in general, rather than a specific ruling about electronics.

For example, the EFF states: "We wish it was the probable cause standard, but we’ll take the reasonable suspicion standard in lieu of no standard at all..." I don't think this is terribly realistic. As far as I know, no search at the border, no matter how intrusive, currently requires probable cause. One would need to first establish the circumstances under which probable cause would be required for a border search in order to then argue that searches of electronics fit into that circumstance.

Frankly, I'm not totally happy with the standard set by this ruling either. I don't see any reason that customs officials need to look at the files in my hard drive or read my browser history absent some ... [ Read More (0.9k in body) ]

Border agents need 'reasonable suspicion' for deep search of electronics

On the one hand, its easy to be cynical about Rand Paul's filibuster. Under U.S. policy, drone strikes cannot be used against a U.S. citizen unless a capture operation would be infeasible. Its hard to imagine such circumstances existing within the United States. Domestic drone strikes are simply not on the table.

Paul could have chosen to filibuster, instead, about a variety of civil liberties issues that are, in fact, on the table. Suspicionless searches of electronics at border crossings, warrant requirements for email that has been stored longer than 180 days, prosecutorial overreach in computer fraud and abuse cases, or perhaps the still murky framework under which U.S. citizens can be detained for suspected terrorist activities.

Instead he chose to make an issue out of a non-issue - such a non-issue that Eric Holder was able to provide what amounts to a one word response.

So what difference does it make?

The partisan dynamics are telling. Liberals who would have been roaring with approval if the exact same rant had been delivered by a Democratic Senator 6 years ago are sheepishly quiet and muttering about obstruction of Senate processes. Members of the conservative base who all had knives out for the Constitution during the same timeframe are suddenly trending hash tags on twitter in support of this.

Obviously, the real intent is to rile up that base. A base so utterly confused that it supports Paul's filibuster regarding drone strikes but has no problem with the due process free detention of Jose Padilla because, you know, "Padilla... is a terrorist, a terrorist at war with this country."

Its hard to take people like that seriously.

However, I've decided that Rand Paul might have done some good with this filibuster. Most Americans support the drone strike policy, because they haven't really thought about it. As far as they are concerned, places like Pakistan and Yemen are more abstract ideas than actual places. The idea of rockets raining down on their own suburbs is a different story. By ranting about that possibility, Rand Paul forces people to stop and THINK about what its like to be on the other end of the stick.

He also reinforces the idea that government power ought to have limits. Its important to reinforce that idea. Its important to talk about it.

At the heart of the ability of government leaders to undermine civil liberties is the strong support their partisan supporters seem to provide for their doing so. If we keep reenforcing the fact that there ought to be limits, perhaps some people will remember that the next time their own party is in power.

This is why Kagan's dismissal of drug dugs' poor records in the field fails to pass the smell test. (Sorry.) Kagan writes field statistics are flawed because in false alerts, dogs may actually be alerting to remnant odors of drugs. She then writes the stats are further skewed because a false negative isn't going to be recorded.

What a total crock of shit. The Supreme Court has completely discredited itself here.

SCOTUS Goes To The Dogs

The movie industry is abandoning its quest for broad new legislation against piracy in the face of the battle last year over the Stop Online Piracy Act, MPAA Chairman-CEO Chris Dodd said Friday.
"Having a brawl in Congress doesn't make a lot of sense," Dodd told TheWrap, shortly after telling a National Press Club audience that he "wasn't enthusiastic" about moving forward with legislation.

This position is new as of late, worth noting. However:

"We must strike a balance between the desire for a free and open Internet and the protection of intellectual property."

The problem with thinking that we need to "balance" human rights and business interests should be rather obvious.

Chris Dodd: MPAA Backing Away From New Piracy Legislation - Yahoo! Movies

This post attempts to clarify the "constitution free zone" meme - the problem with border searches of electronics is with searches at the border, and not necessarily with extended border searches.

Does a Constitution-free zone really exist in America?

This month, the U.S. Department of Homeland Security published the executive summary for their civil liberties assessment of U.S. Customs searches of traveler's electronic devices. To put it briefly, DHS has concluded that additional civil liberties safeguards to protect traveler's privacy either are not needed or would not be effective. However, they have decided not to publish the reasoning behind these conclusions.

In the absence of an explanation, all we can do is speculate as to what their reasoning might be, but if the kind of safeguards that DHS considered in their assessment would not be effective, perhaps this means that it is time to reconsider the framework of Constitutional safeguards that are available.

U.S. Customs has performed searches of travelers belongings at border crossings since at least the civil war era. In recent times a confluence of factors has introduced some controversy about these searches. On the one hand, the pressures of the war on drugs as well as the terrorist attacks of September 11th have increased the frequency and intrusiveness of the searches that are being performed. On the other hand, the dropping costs of air travel have placed a larger cross section of the public at border crossings with increased frequency, and the advent of the laptop computer has placed massive archives of personal information in those travelers hands as they cross those borders.

DHS has long maintained that U.S. Customs agents can search and seize traveler's electronics at random, without any reason or suspicion. Thousands of travelers electronic devices are searched and/or seized every single year.

Some people mistakenly conclude that this is because the Fourth Amendment doesn't apply at the border. The reasoning is actually more subtle. The Forth Amendment requires that probable cause be established before a search warrant can be issued, but it doesn't state that a search warrant is required for every kind of search - it merely protects the right of the people to be secure against "unreasonable searches and seizures." The Constitution leaves it up to the courts to determine what kind of searches are "reasonable" and what kind of searches are "unreasonable," as well as when a warrant is needed.

In general, the Supreme Court has concluded the U.S. Customs may search the belongings of travelers at border crossings at random, without any reason or suspicion. The court has determined that these searches are "reasonable" because they occur at the border, and therefore probable cause does not need to be established and a warrant does not need to be obtained.

However, there are limits to this power. Extremely intrusive searches, such as body cavity searches or strip searches, require that "reasonable suspicion" be established before they take place at the border. "Reasonable suspicion" is a standard of suspicion like ... [ Read More (0.7k in body) ]

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

Thats 1095+ days, but hey, who's counting. I guess it was important that we get Obama reelected beforehand.

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.

The arrogance of declaring that they have made these conclusions without publishing their reasoning is just infuriating. It is transparently obvious that a policy REQUIRING A REASON before searches take place would have a "concomitant civil liberties benefit."

DHS Watchdog OKs 'Suspicionless' Seizure of Electronic Devices Along Border | Threat Level | Wired.com

THIS:

“We hope to establish that the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”

ACLU Files FOIA Request for Unreleased DHS Privacy Report on Laptop Searches at the Border

The memo, rather brilliantly, calls this definition a “broader concept of imminence.” Most people, however, would call this “not imminent.” Instead, it appears that the Justice Department’s version of “imminent” is whatever they say it is.

Sounds like the lawyering in the Obama Whitehouse is just as fucked up as the lawyering in the Bush Whitehouse was.

For the record - I don't think the legal framework for targeted killings should hinge on the citizenship of the target.

The Justice Department’s chilling ‘targeted killings’ memo