Believe it or not, but the 9th Circuit Court of Appeals recently upheld warrantless searches of people’s lap top computers by Department of Homeland Security Agents at the border. Under the decision, Agent had unbridled access to search laptop computers of people entering the United States regardless of whether they believed the individual had committed, was committing or would be committing a crime. In legalese we call that type of search one without “reasonable suspicion” or “probable cause.” It seems, however, that Congress is trying to better define the searches.
A new bill introduced to Congress last week reportedly limits the Department of Home Security, Customs and Border Patrol agents when searching your laptop, external hard drive or mobile device.
“I was deeply concerned to learn about the lack of protections individuals’ have when their electronic equipment is randomly seized,” Rep. Loretta Sanchez (D-CA), who introduced the bill, told Ars Technica. “With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information.”
Unfortunately, the Bill does not make the searches more difficult to conduct. The 9th Circuit Judges noted that precedent already allows searches of 1) briefcases and luggage, 2) a purse, wallet, or pocket, 3) papers found in pockets, and 4) pictures, films, and other graphic material. They had no hesitation to extend it to lap top computers. There were attempts to limit the decision to the protection of the territorial integrity of the United States. While such searches would not appear to be legal within the country, courts have long recognized the government’s right to “protect its territorial integrity” by controlling the material passing across its borders.
I’m having a difficult time with this. The Patriot Act was passed to obstruct terrorism but i have seen prosecutors bootstrap that law onto cases where there wasn’t even a breath uttered about terrorism. I wouldn’t doubt an ambitious prosecutor’s efforts to use the 9th Circuit case to justify a search within the territory.
For those of you traveling abroad … leave the lap top at home.
(Source)
The Contiguglia Law Firm, P.C. 
September 24th, 2008 at 6:53 am
Homeland Security – what a joke! What could an agent possibly find by searching a laptop? Our tax dollars would be better spent hiring Homeland Security agents that are computer savvy and able to use analysis and trending to identify patterns and catch the true terrorists. It’s difficult for the US citizens to have much faith in Homeland Security or any other governmental agency when about once a week there is an incident of laptops being stolen and our personal information compromised. Let’s stop the ridiculous limit of carry-on liquids only allowing 3 oz. I would guess that 3 ounces of nitro glycerin could do some damage. A quart zip lock bag offers no protection. And let’s stop having people remove shoes in order to get through security. The US needs to learn from some of our Middle Eastern friends who have dealt with terrorism for a long time. Searching laptops is not the answer. Using the most powerful tool, information, is the only way the US can hope to stay one step ahead of the bad guys.
September 24th, 2008 at 1:03 pm
I found this very interesting and so I thought I would see what I could find on it. This is a blog that was posted at the beginning of August, http://government.zdnet.com/?p=3913 by Richard Koman. It states that not only are they doing these searches, they are also allowed to keep the laptop for an undisclosed amount of time and potentially share the information they find.
I also found another interesting article on it, although I am not sure how creditable this article is, but apparently a British business women had her laptop confiscated in December of 2006, was told that she would get it back in 10 to 15 days and as of February 2008 she had not received it back. http://writ.news.findlaw.com/ramasastry/20080220.html
Please let me know if these links do not work. Thanks.
September 24th, 2008 at 1:11 pm
I agree that the 9th Circuit Court of Appeals’ decision upholding the right of officers of the Dept. Of Homeland security to search electronic devices of travelers without a warrant continues to establish dangerous precedent to denying personal integrity and privacy.
As LeisureGuy in his posting entitled “Unconstitutional laptop/pda/cellphone searches” pointed out, the search of a suitcase is not identical to the search (and seizure) of electronic devices human beings use to master the demands of their complex lives. Suitcases, bags, and even pockets are physically defined spaces that can only hold a certain number of items, whereas the storage capacity of a pda or laptop, or any other electronic device are far greater and will increase in size every time a new iteration is marketed, which means we will document and store more of who we are, and what we think on these devices.
Furthermore, I do agree with the California Federal District Court’s holding in “United States v. Arnold”, that searching a traveler’s files on a laptop is a serious intrusion into a person’s dignity as laptops files store “thoughts”, and allow the reconstruction of a person’s thought history through the “memory” of a hard drive.
Due to the trends in the law undermining the right to privacy and personal dignity and because new digital equipment software, so it seems right now, is not being designed in a way that ensures that users can easily keep an overview of their data and are regularly guided in a user friendly manner to erase files permanently and completely from their computer’s memory in contrast to saving and backing up files, the every day non-techie user is incriminating him or herself more every time he/she uses a computer. The more data there is, the more it can be selectively extrapolated and manipulated by narrow-minded, outcome oriented bureaucrats and used against citizens and non-citizens alike.
I thought I learned that reading another person’s mind is not an objective standard, and that we therefore infer from the pattern of a person’s actions the “intent” of a person to commit a crime. So why are we now taking away the right to freedom of thought based on unreasonable suspicions? Isn’t the right to think whatever one wants to think essential for a viable democracy? And is it not the role of the legislative branch of government to protect “we the people” from such intrusions on our rights?
Perhaps, it would be useful to read the German philosopher Immanuel Kant’s 1784 essay An Answer to the Question: What is Enlightenment? (http://philosophy.eserver.org/kant/what-is-enlightenment.txt)
October 7th, 2008 at 9:53 am
Laptop Search: The 9th Circuit Judges utilized precedent in their ruling to uphold a court decision allowing warantless searches of laptops. The precedent used by the 9th Circuit court (searches of briefcases, luggage, purses, wallets, pockets, pictures, films, etc. are already allowed) does not seem equitable or relevant to the search of computers. Although the judges had no hesitation to extend precedence to lap top computers, I don’t feel that this is a fair or equitable interpretation of the precedent.
October 26th, 2008 at 6:06 am
I have no problem with homeland security searches because there is a huge problem crossing through border towns. I think the answer lies in a question…are they searching the laptops for information, or are they testing to see if they are disguised as an explosive device? I don’t see the point in allowing them to confiscate the laptop unless there is solid warranted proof of illegal drugs or anything that could be life threatening or illegal to warrant this type of search, such as human trafficking.. it doesn’t seem relevant, unless there is something we are not being informed of from our government to maintain F.B.I. security measures. I’m curious if we just don’t know enough behind the scenes when it relates to border patrol interrogations.
November 3rd, 2008 at 9:24 am
The Patriot Act has got to be one of the most unpatriotic bills introduced into congress. People are eager to give up their rights to make themselves safe; however, once you give up your rights it’s harder to get them back.
I don’t think the general public realizes the consequence of the basic rights they gave up when they allowed the Republican congress to author the Patriot Act and before the 2006 election sign into law. The Patriot Act is a blatant example of the sleepiness of this country as a whole. The Act goes against the basic foundation of each citizen’s civil liberties. It has violated the basis of Due Process and the Fourth Amendment.
The complacency of people to allow these rights to be taken away is alarming. If it wasn’t for organizations like the ACLU, the act would have been signed into law as it stood 45 days after the 9/11 attack.
Maybe on the local T.V. news level instead of having “Gadget Day” they might want to have a continuing coverage on how organizations, such as the ACLU, fought for each change and reform that was accomplished to restore basic liberties the Patriot Act took away. Why aren’t polls taken on questions such as, “What do you think the Patriot Act means to you as an American? How do you feel about the government being able to monitor every transmission you make? How do you feel about the government’s ability to seize your phone records and tune in to phone calls you may be making at any time? How do you feel about the government’s ability to monitor your internet browsing, T.V. viewing, library book borrowing and book purchases, without telling you that you are under investigation?” Perhaps there is not enough mind-numbing entertainment value in that. It is much more entertaining to watch what Britney Spears is doing and what Paris Hilton is wearing.
A complete analysis of, “How the Patriot Act Singularly Diminished the Fundamental Rights of Each US Citizen”, could be a dissertation in and of itself. How many wars have we fought to create and maintain our liberties and our rights? How may people have died to keep our freedoms? The irony is that today we are handing over those rights in the name of security and the majority of people don’t even realize it. Is it conceivable that Homeland Security, which was birthed by the Patriot Act, become synonymous with K.G.B?
November 5th, 2008 at 3:48 pm
That is very interesting, considering that I read an article recently about the same thing but only it was with computer repair shops. According to the article people who had taken their computers to be repaired were violated. The repair shop had searched through data in their computers. The owners said the government insructed them to do this. I don’t see how they can justify this. They did not specify what the oucome was.
November 6th, 2008 at 8:25 am
Freedom is no longer a privilege in this country and hasn’t been since 9/11. If the search process was actually yielding results and stopping terrorists, drug traffickers, illegal immigrants, etc. that may justify it. I doubt anything has come of it, except long border lines and hatred toward the border patrol.
November 10th, 2008 at 1:57 pm
I recently came across a Colorado Supreme Court opinion that was just issued on November 3, 2008, and found it interesting to compare this opinion to the 9th Circuit Court of Appeals’ opinion. While the CO Supreme Court opinion is obviously not about border searching of laptops, it is about a persons privacy rights and the scope of that privacy in relationship to producing a laptop for discovery purposes. The case involves a personal injury automobile accident wherein the plaintiff alleges that the defendant’s negligence caused the accident because at the time of the accident the defendant’s laptop was lying open on his passenger seat. The defendant denied that he was using the laptop at the time of the accident and petitioned the CO Supreme Court to reverse an order by the Jefferson County District Court that required him to produce his laptop for inspection, arguing that the court should have granted his request for a protective order to limit the scope of inspection of his laptop.
The CO Supreme Court agreed with the petitioner/defendant and ruled that the trial court abused its discretion by ordering the petitioner/defendant to produce his laptop for inspection without establishing parameters to balance the truth-seeking purposes of discovery with his privacy interests. Instead, the trial court should have issued a protective order to limit the scope of the inspection to information necessary to determine whether the laptop contributed to the accident.
It is interesting to me that the CO Supreme Court found that there had to be a limit on the information made available by producing the laptop even by a defendant who did something wrong, compared to the border searches of laptops wherein a person may not have done anything wrong and were not planning to do anything wrong in the future, but have to give up all rights and give the agents full reign over their property.
What do they expect to find on someone’s laptop anyway? Do they think they may uncover a Word document with a detailed outline showing how the laptop’s owner is planning on committing a terrorist act? It just seems like they have many other methods of already invading a person’s privacy to make going through someone’s laptop unnecessary.
I would think that the original purpose of the precedent that already allows the searches of purses, luggage, pockets, etc. is to protect people on airplanes, etc. This makes sense to me. These things should be screened to prevent people from causing great amounts of harm to others. However, I think putting laptops in this category does not fit the mold and does nothing but invade people’s rights to privacy.
The opinion CO Supreme Court opinion can be found at: http://www.cobar.org/opinions/opinion.cfm?opinionid=6879&courtid=2
November 30th, 2008 at 8:45 pm
This is all new news to me when read “…earlier this year, the Ninth Circuit Court of Appeals ruled that border searches of electronic devices did not violate the Fourth Amendment, even in instances when there was no probable cause..”
I understand homeland security’s job is to protect Americans but I feel these people can and do take advantage of their position. This makes me feel upset. Like my rights, my freedoms, are controlled to the government’s advantage. I would like to believe that the world is a better place but after 9/11 its better to be safe then sorry. I would rather have my complete privacy but if this is just another precaution to keep Americans safe from terrorism, I guess I have no choice anyway, search me, I have nothing to hide. In the end with mixed feelings and all i agree with the 9th Circuit Court of Appeals decision to uphold.
March 11th, 2009 at 7:39 pm
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