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Court: 4th Amendment Applies At Border, Password Protected Files Not Suspicious

Soulskill posted about a year ago | from the you're-doing-it-right dept.

The Courts 194

An anonymous reader sends this Techdirt report on a welcome ruling from the 9th Circuit Court of Appeals: ""Here's a surprise ruling. For many years we've written about how troubling it is that Homeland Security agents are able to search the contents of electronic devices, such as computers and phones at the border, without any reason. The 4th Amendment only allows reasonable searches, usually with a warrant. But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a "border search," for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw no reason to change this policy. Well, now they might have to. In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border, that agents do need to recognize there's an expectation of privacy, and cannot do a search without reason. Furthermore, they noted that merely encrypting a file with a password is not enough to trigger suspicion."

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It's still smart to look clean... (4, Interesting)

Lumpy (12016) | about a year ago | (#43122271)

If you cant host it securely online, then mail several MicroSD cards to your destination first to avoid the harassment by the TSA.

Note: you can easily get a Micro SD through airport security without them questioning you, I forgot about one in my pocket and they did not even see it with the Naked scanners.

Re:It's still smart to look clean... (5, Funny)

Anonymous Coward | about a year ago | (#43122303)

If you cant host it securely online, then mail several MicroSD cards to your destination first to avoid the harassment by the TSA.

Note: you can easily get a Micro SD through airport security without them questioning you, I forgot about one in my pocket and they did not even see it with the Naked scanners.

I always swallow my MicroSD card before I begin travel and retrieve it after I arrive at my destination.

Works great as long as my travel time is less than around 8 - 16 hours. I hate when my travel time is longer and I have to swallow it again.

Re:It's still smart to look clean... (0)

craigminah (1885846) | about a year ago | (#43122499)

That was one of the funnier comments I've read here...too bad I'm all out of mod points.

Re:It's still smart to look clean... (1)

Karl Cocknozzle (514413) | about a year ago | (#43122715)

I always swallow my MicroSD card before I begin travel and retrieve it after I arrive at my destination.

A wise precaution!

"I swallowed my wedding ring when they came in... Get me some ipecac, I'd like to expunge it."

Re:It's still smart to look clean... (3, Funny)

ColdWetDog (752185) | about a year ago | (#43122727)

Never thought Immodium [wikipedia.org] was a part of a well rounded security system.

Re:It's still smart to look clean... (1)

youn (1516637) | about a year ago | (#43122741)

that was hilarious :)

Re:It's still smart to look clean... (0)

Anonymous Coward | about a year ago | (#43122797)

In any case, that's a shitty idea. With all the crap they deploy at the borders, from X-Ray to T-Ray Imaging, i would not be to sure that they wont see you flock of sdcards stuck in your stomach, so they might detain you until you..... err.... "hand over" the cards...

Re:It's still smart to look clean... (4, Funny)

burningcpu (1234256) | about a year ago | (#43122835)

Never underestimate the bandwidth of a dude with a belly full of micro sd cards?

Re:It's still smart to look clean... (5, Funny)

Type44Q (1233630) | about a year ago | (#43123539)

Never underestimate the bandwidth of a dude with a belly full of micro sd cards?

How about "that's a shitload of storage?"

Re:It's still smart to look clean... (1)

dorfed (2860881) | about a year ago | (#43122887)

/me likes this /sarcasm

Re:It's still smart to look clean... (2)

meerling (1487879) | about a year ago | (#43123251)

Little too intense for me. Just keep it under your tongue, it's not like it'll melt, and so long as you don't cough, it'll be fine. Heck, you can even talk with a microsd under your tongue.

Re:It's still smart to look clean... (1)

hedwards (940851) | about a year ago | (#43122465)

They can open those letters if they want to. Or at least that's been the case in the past. Not sure if this ruling would apply to that or not.

Re:It's still smart to look clean... (1)

Kaenneth (82978) | about a year ago | (#43122511)

Ah, but if the data on the SD card you mail consists of every even numbered byte, while the one you carry has every odd numbered byte...

(as long as your files aren't unencrypted ASCII characters stored in UTF-16...)

Re:It's still smart to look clean... (0)

Deekin_Scalesinger (755062) | about a year ago | (#43122791)

Which is why I transpose everything into ROT-13, then do it once more, for good measure! Try and catch me coppers muahahahahaha

Re:It's still smart to look clean... (5, Insightful)

Dahamma (304068) | about a year ago | (#43122807)

Why bother... Just encrypt it with a random long key that you can't easily memorize and mail the key printed on a piece of paper. Then you can tell them you don't have the password even if they wanted it. I kind of doubt they are going to open up every random letter that goes through the post office.

Though it's all kind of a silly hypothetical. No one at the border wants your actual data anyway, they just want to harass you over not being given access to it.

Re:It's still smart to look clean... (5, Funny)

dbIII (701233) | about a year ago | (#43122953)

Ah, but if the data on the SD card you mail consists of every even numbered byte, while the one you carry has every odd numbered byte...

That sounds much better than putting it up your endian.

Re:It's still smart to look clean... (2)

maz2331 (1104901) | about a year ago | (#43123449)

I, for one, am not putting that in my little endian. Others who are big-endian may do so if they wish.

Re:It's still smart to look clean... (1)

Jane Q. Public (1010737) | about a year ago | (#43123039)

"as long as your files aren't unencrypted ASCII characters stored in UTF-16..."

Doesn't matter. They're still stored as bytes. You'd just be traveling with the first byte of each character. Or second, as the case may be.

That's really more obfuscation than anything, though. I have little doubt that given the least-significant bytes, they could piece together the message eventually.

Re:It's still smart to look clean... (0)

Anonymous Coward | about a year ago | (#43123673)

When you cram ascii into UTF-16, you bet to byter per character, the second byte of the pair is always null.

Re:It's still smart to look clean... (1)

SleepyHappyDoc (813919) | about a year ago | (#43123311)

That's actually not a bad idea. Two SD cards in RAID-0...you get better performance, and they're basically useless unless they're together, so you can ship them separately for the extra layer of security. Of course, you'd still want your data encrypted, but it wouldn't hurt.

Re:It's still smart to look clean... (4, Funny)

camperdave (969942) | about a year ago | (#43123607)

Ah, but if the data on the SD card you mail consists of every even numbered byte, while the one you carry has every odd numbered byte..

I go one step better. I break it down to bits and store all the 1s are on one card, and all the 0s are on the other.

Re:It's still smart to look clean... (2)

dorfed (2860881) | about a year ago | (#43122853)

I see it now: sd-card sniffing dogs!

Re:It's still smart to look clean... (2)

Capt.DrumkenBum (1173011) | about a year ago | (#43123029)

I don't know about mailing micro SDs, but I was recently involved in trying to send a USB HDD through the mail from the US to Canada. Unsuccessful several times. USPS returned with no explanation.

Re:It's still smart to look clean... (2)

hawguy (1600213) | about a year ago | (#43123253)

I don't know about mailing micro SDs, but I was recently involved in trying to send a USB HDD through the mail from the US to Canada. Unsuccessful several times. USPS returned with no explanation.

Did you attach the correct customs form and accurately declare the contents?

I've purchased server hard drives from Canadian eBay merchants without a problem, but haven't tried the other direction. But you'd think if the USPS was worried about information crossing the borders, they'd stop it in both directions.

Hazzah! (3, Insightful)

Anonymous Coward | about a year ago | (#43122275)

About time the courts refute the absurdity of the state security paranoia.

Re:Hazzah! (5, Funny)

Rosyna (80334) | about a year ago | (#43122325)

Do not worry, Scalia will save us from the Tyranny of the 9th Circuit!

Re:Hazzah! (0)

Anonymous Coward | about a year ago | (#43122539)

True, SCOTUS will never let this stand.

Re:Hazzah! (4, Insightful)

maz2331 (1104901) | about a year ago | (#43123521)

And they upheld considering someone suspicious if they are a proven pedophile. The defendant didn't win - the evidence will still be used. They keyed on him because he has a long record of molesting kids and went back-and-forth to Mexico on a regular basis.

The good thing about this case is laying out some parameters barring random suspicionless running a full-blown forensic exam on a device while still allowing known shady characters to be given a digital anal exam.

Makes sense (3)

scottbomb (1290580) | about a year ago | (#43122285)

If you are attempting to smuggle in drugs and they catch you at the border, you still get arrested and charged with a crime. It's nice to see the court side in favor of liberty for a change.

Re:Makes sense (4, Informative)

dgatwood (11270) | about a year ago | (#43122339)

This is, of course, the 9th circuit, where you'd pretty much expect this result from an en banc review (which for the 9th circuit probably means a limited en banc review by 11 judges, because I don't think all 29 judges have ever reviewed anything). The only way I could see them going the other way is if it were merely a three-judge panel with some of the most conservative judges on that court.

I suddenly have a glimmer of hope (1)

Anonymous Coward | about a year ago | (#43122305)

Let's see how long this lasts - it is the 9th Circuit, after all...

I think it's great, but... (4, Informative)

DugOut (824998) | about a year ago | (#43122353)

the 9th circuit is to the left of most courts, so there's a good chance that this will be overturned.

Re:I think it's great, but... (2)

rujholla (823296) | about a year ago | (#43122493)

This would be one of the few times that I agree with the 9th circuit, and I'm not that far left. Maybe SC will leave this one be.

Re:I think it's great, but... (1)

frig.neutron (2015114) | about a year ago | (#43122773)

why would they?

Re:I think it's great, but... (5, Insightful)

rujholla (823296) | about a year ago | (#43122901)

Because it is the right thing to do?

Re:I think it's great, but... (3, Funny)

fyngyrz (762201) | about a year ago | (#43122947)

Well, there's a first time for everything, I suppose.

Re:I think it's great, but... (1)

meerling (1487879) | about a year ago | (#43123265)

What does that have to do with modern politics?

Re:I think it's great, but... (1)

hedwards (940851) | about a year ago | (#43122703)

I'm pretty sure that's not true. These are Federal courts appointed by whoever the President is at the time that the seat vacates, so for that circuit to get out of whack with the other ones by that degree would be rather unlikely.

More likely, they see more cases that the right goes nuts about and people see that as evidence that they're further to the right. What's more, courts can only hear cases which are brought to them, they can't go out there and look for cases that they want to rule on.

Re:I think it's great, but... (4, Insightful)

Zcar (756484) | about a year ago | (#43123597)

The 9th Circuit's rate of getting overturned by the Supreme Court is not unusual among the circuits. Every year some have a higher rate than the 9th and some lower. They just hear the most cases at the circuit level and generate the most appeals.

All the circuits have a pretty high rate of getting overturned since there's some selection bias in the cases which are appealed to the court. First when deciding to file an appeal since you're not going to unless you think you can win. Second, in granting cert which only occurs when the justice responsible for the circuit thinks there's something to the appeal, else he or she would deny cert.

100 mile border (5, Interesting)

hawguy (1600213) | about a year ago | (#43122361)

Now if we could get the Supreme Court to roll back their validation of DHS's declaration that the "border" actually extends 100 miles [polymontana.com] inland from the actual border. Half the population of the USA lives within this extended "border zone".

Re:100 mile border (1)

maxwell demon (590494) | about a year ago | (#43122443)

That picture only shows the outer border of the USA. But isn't a border also at every single international airport? After all, those airports have border controls,. So add to the graphics a 100 mile radius circle around every international airport.

Re:100 mile border (1, Informative)

hedwards (940851) | about a year ago | (#43122485)

No, that's not true. There is a small area inside the customs and quarantine area where you don't require a visa to be if you're traveling to another country, but that's related to international treaties and isn't a real border. It's also related to the fact that that's where they do the actual inspection and stuff as it's the most reasonable place to do the inspection.

Re:100 mile border (4, Informative)

Charliemopps (1157495) | about a year ago | (#43123177)

I adopted a kid from outside the country... trust me, you get to know what is and is not international when you adopt. Most of the airport from the plane to the customs desk is "Border" Once they search your shit and you're through, you're "in country" In the united states, it's really nice. They have colored lines on the floor... once you're over the line, you're in the US. Most people don't notice. But when you have a screaming kid that doesn't speak your language, thinks you just kid-napped them and has a terrible case of Giardia, you become acutely aware of exactly where the united states border begins and ends.

Re:100 mile border (1)

guruevi (827432) | about a year ago | (#43122831)

Add to that that whenever the local law enforcement 'cooperates' with the DHS under the VIPR program, they have access virtually anywhere. They use it to search for 'illegal' pot plantations using military spy drones.

Re:100 mile border (1)

the eric conspiracy (20178) | about a year ago | (#43123155)

The extended border region doesn't obviate the need for reasonable suspicion. It is only in ports of entry that suspicion is not required to justify search.

Re:100 mile border (4, Informative)

hawguy (1600213) | about a year ago | (#43123233)

The extended border region doesn't obviate the need for reasonable suspicion. It is only in ports of entry that suspicion is not required to justify search.

The ACLU seems to think otherwise:

http://www.aclu.org/technology-and-liberty/fact-sheet-us-constitution-free-zone [aclu.org]

  • * Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
  • * The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
  • * But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
  • * As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
  • * Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
  • * However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.

And the DHS doesn't seem to be afraid to stop and question motorists far from the "real" border even if there's no reasonable suspicion at all:

http://www.liveleak.com/view?i=ef3_1361978936 [liveleak.com]

Re:100 mile border (4, Insightful)

the eric conspiracy (20178) | about a year ago | (#43123575)

Notice I used the word 'search', not the word 'stop'.

The Border Patrol is allowed to set up checkpoints within the 60-100 mile region where it can conduct routine stops as part of its mission to control illegal immigration. At such places it is not allowed to conduct suspicion-less searches. They may ask you questions which you can respond to voluntarily.

http://www.usborderpatrol.com/Border_Patrol300b.htm [usborderpatrol.com]

The only places that the Border Patrol is allowed to conduct suspicion-less searches is at ports of entry. Not generally along the border. Not 100 miles from the border. Only at ports of entry. Ports of entry include international airports that may be in the interior of the US.

It is not a long-standing 'view'. It is the result of laws passed by the FIRST Congress of the United States, actually their 5th bill, known as the Tariff Act which was signed into law July 4 1789 by George Washington. For nearly 100 years tariffs were the chief source of funds for the operation of the Federal Government. Obviously to enforce and collect tariffs it is necessary to search people and goods entering the US.

Since Congress is granted the power to regulate commerce by enumeration in the Constitution they can define reasonable search under the 4th Amendment to include inspecting everything that enters the country at a port of entry.

Hope this clarifies the law for you.

Re:100 mile border (2)

n3r0.m4dski11z (447312) | about a year ago | (#43123581)

"The extended border region doesn't obviate the need for reasonable suspicion"

If its you and the cops word, I guarantee that the judge will trust the cop unless you have overwhelming evidence. And negative bonus points if the reason you are before this judge is that they found something in the officers illegal search.

Dhs is I think american federal government, the state of washington just legalized marijuana. Is just one of the many examples of what could go horribly wrong for a law abiding citizen when you give police extra powers unnecessarily.

Re:100 mile border (1)

nothings (597917) | about a year ago | (#43123665)

What SC validation? According to Wikipedia, it's the opposite: "the Supreme Court has clearly and repeatedly confirmed that the border search exception applies only at international borders and their functional equivalent" and there's a link to such a ruling from 1973.

Stopped Reading after "9th Circuit" (0)

Anonymous Coward | about a year ago | (#43122415)

None of the circuit courts have been over-rulled by the Supreme Court as much as the 9th circuit. They make some really wacky decisions.

You're a fucking idiot (2, Informative)

Anonymous Coward | about a year ago | (#43122573)

The 9th circuit is overruled more only because they hear more cases than the other courts. Proportionally to the amount of cases heard, other courts have been overrulled more in the past.

But of course you don't want to hear that. You'll just go back to your lies and your Rush Limbaugh.

Re:Stopped Reading after "9th Circuit" (1)

The Mighty Buzzard (878441) | about a year ago | (#43123123)

The 6th and 5th are ahead of the 9th in percentage of overturned cases. At least they were the last time I checked a year or two ago. Still, a nearly 80% overturned when reviewed rate is not something to be proud of. And, yes, they are almost always erring on the side of the left when they're overturned.

Re:Stopped Reading after "9th Circuit" (3, Insightful)

Zcar (756484) | about a year ago | (#43123637)

80% isn't bad because there's a selection bias toward cases which are likely to be overturned in cases appealed to the Supreme Court as well as with the Court's decision to grant certiorari. Cases which don't have a chance at getting overturned often either aren't appealed or aren't granted certiorari.

9th Circuit... Don't hold your breath... (0)

HaeMaker (221642) | about a year ago | (#43122417)

9th Circuit is the most liberal, it has a good chance of being overturned or modified by SCOTUS.

Re:9th Circuit... Don't hold your breath... (0)

Anonymous Coward | about a year ago | (#43122495)

The 9th circuit isn't more likely to be overturned. They have a higher number of cases overturned because they hear more cases.

Re:9th Circuit... Don't hold your breath... (2)

maz2331 (1104901) | about a year ago | (#43123479)

Not in this case - the Feds can't appeal it because they won, and I really doubt that the other side has a shot at appealing to SCOTUS and getting cert granted.

Allow? (0)

Anonymous Coward | about a year ago | (#43122429)

The Bill of Rights are more about denying the government power to: rather then allowing it the power to impugn upon the inherent rights of the people . Misunderstanding of that simple fact has led to many constitutionally dubious laws and regulations. Without clear reasons, the government should not be impeding a citizen's free and anonymous travel.

Re:Allow? (4, Interesting)

cavreader (1903280) | about a year ago | (#43122925)

And the public can challenge the "constitutionally dubious laws and regulations" if charged with a crime. However venting outrage online or on the street over a law is not going to just make the government say OK were sorry and we will trash the law you are complaining about.

  There have been search-and-surveillance activities such as the case brought against Dr Arian, a former University of South Florida professor. His defense successfully challenged the Patriot Act and got the evidence collected using the Patriot Act excluded from the proceedings. To change bad laws or policies you need to challenge the validity of such laws or policies in open court. It might be a long haul but the judicial branch of the government has the last word on whether you were denied your rights. They are also empowered to invalidate Legislation created by the government. Any law such as the Patriot Act can only be really scrutinized for it's legality when it is actually used against someone. The government already thinks the Patriot Act is iffy. They use Gitmo to avoid following any laws in the US. The US government may be cumbersome and outright idiotic at times but it is not a static organization. It is constantly being scrutinized and changed. It is by no means perfect but it could be worse. Governing 350 million people and trying to make sure everyone's interests are satisfied is damn near impossible but can be entertaining at times. No matter what changes the government makes there will always be people complaining about something. People talk about US decline and I wonder when did the US ever get to pinnacle of righteousness and prosperity to they are supposed to declining from? Just take a look at US history and point out where the US had no flaws were not committing idiotic and sometimes dangerous and brutal acts in the domestic and international spheres.

Re:Allow? (3, Insightful)

Anonymous Coward | about a year ago | (#43123143)

My sentiments exactly. Protections for rights were written into the Constitution because the framers believed everyone had those rights inherently.

Being outside the borders of the country just means our government has no jurisdiction to protect those rights, not that they don't exist.

IMHO, if you believe that civil rights only apply to American citizens, or those inside US borders, then you don't really believe in America or democracy.

Re:Allow? (0)

Anonymous Coward | about a year ago | (#43123443)

Protections for rights were written into the Constitution because the framers believed everyone had those rights inherently.

Well, not everyone...

Re:Allow? (0)

Anonymous Coward | about a year ago | (#43123593)

> Well, not everyone...

True. All white male landowners. But those rights have since been acknowledged as applying to everyone by US courts in the intervening time.

Re:Allow? (0)

Anonymous Coward | about a year ago | (#43123623)

Never claimed to express myself well with words, either vocally or written. Amongst other poor choices of expression, I should have used "person" or similar instead of "citizen", even if we are all citizens of the universe. It probably pushed its way into my choice of words due to the steady increase over the years of the "show me your papers please" laws and procedures being pressed upon us. These also increasingly include unconstitutional(IMO) search and seizures.

Could at least spell check the headline (0)

Anonymous Coward | about a year ago | (#43122431)

Suspiscious???

Re:Could at least spell check the headline (2)

maxwell demon (590494) | about a year ago | (#43122487)

Suspiscious???

Also known as fishy. :-)

Re:Could at least spell check the headline (1)

ballpoint (192660) | about a year ago | (#43123447)

Suspiscious???

Also known as fishy. :-)

Sorry, I'm out of +1, Witty points.

Update, 10 May 2013 (3, Informative)

93 Escort Wagon (326346) | about a year ago | (#43122441)

Reuters - In a multi-agency action described by Homeland Security as "necessary for the public good", the United States Ninth Circuit Court was raided by U.S. Marshalls. All members of the judiciary were handcuffed and taken away for processing as "enemy combatants". A White House spokesman declined comment, other than to note the judges were being transported to Guantanamo Bay.

Re:Update, 10 May 2013 (3, Funny)

ColdWetDog (752185) | about a year ago | (#43122753)

Mommy! Grandpa dumped all of his medications in the goldfish bowl again!

Re:Update, 10 May 2013 (0)

phantomfive (622387) | about a year ago | (#43123323)

No, this is Obama, he wouldn't do that.

Sanity prevails. (1)

girlinatrainingbra (2738457) | about a year ago | (#43122459)

Sanity prevails. How uncommon, and how good for it to occur. I'll have to read the details of the case that made it this far up the chain. Will this circuit court ruling have repercussions and applications outside of its jurisdiction, or is the rest of the country on its own still? IANAL, BIYAAL, WYCTC? (but if you are a lawyer, would you care to comment?)

Authoritarians! Not to worry! (0)

Anonymous Coward | about a year ago | (#43122471)

The SCOTUS will soon overturn this because of the following reasons:
1) Terrorism
2) Child pornography
3) Drugs

Carry on, citizens!

Re:Authoritarians! Not to worry! (0)

Anonymous Coward | about a year ago | (#43122579)

The SCOTUS will soon overturn this because of the following reasons:
1) Terrorism
2) Child pornography
3) Drugs

Carry on, citizens!

4) ???
5) Prophet

So if you're not in the US where are you? (1)

future assassin (639396) | about a year ago | (#43122489)

>But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply.

If I shoot the border guard then the US laws don't apply?

Re:So if you're not in the US where are you? (0)

Anonymous Coward | about a year ago | (#43122523)

It's an Act of War.

Re:So if you're not in the US where are you? (1)

meerling (1487879) | about a year ago | (#43123313)

As there was no declaration of war, and it's of limited scope, it's probably just going to be declared a police action. :p

Re:So if you're not in the US where are you? (0)

Anonymous Coward | about a year ago | (#43122665)

Basically it's similar to being in international waters. You are essentially between two borders, the one you came from, and your destination.

Likely the laws of the place you traveled from would prevail but murder, as far as I'm aware, isn't legal anywhere.

4th amendment no longer exists (0)

Anonymous Coward | about a year ago | (#43122501)

Read up on the Terry Doctrine. You can be stopped and searched any time, all you need to do is behave suspiciously.

Re:4th amendment no longer exists (1)

aztracker1 (702135) | about a year ago | (#43123229)

Well, you're coming into our country.. that is pretty suspicious..

Re:4th amendment no longer exists (1)

meerling (1487879) | about a year ago | (#43123319)

These days it seems they have declared breathing suspicious.
And holding your breath for that matter.

Re:4th amendment no longer exists (0)

Anonymous Coward | about a year ago | (#43123359)

These days it seems they have declared breathing suspicious.
And holding your breath for that matter.

Why are you holding your breath? Do you have something to hide?

Re:4th amendment no longer exists (3, Funny)

camperdave (969942) | about a year ago | (#43123681)

Why are you holding your breath? Do you have something to hide?

"Yes, Weapons grade halitosis".

Irrelevant jurisdiction? (1)

TheSpoom (715771) | about a year ago | (#43122551)

Wouldn't the Supreme Court have to rule for this to apply? Couldn't the DHS just accept this ruling and not appeal, thus keeping the status quo because the border is a national issue and this hasn't been ruled upon by a body with national jurisdiction?

Re:Irrelevant jurisdiction? (1)

Letophoro (1417231) | about a year ago | (#43122707)

Wouldn't the Supreme Court have to rule for this to apply? Couldn't the DHS just accept this ruling and not appeal, thus keeping the status quo because the border is a national issue and this hasn't been ruled upon by a body with national jurisdiction?

Not necessarily. The ruling by the 9'th circuit applies everywhere that falls under the jurisprudence of the court. If the DHS appeals, they can probably keep the status quo until the SCOTUS makes a ruling.

Re:Irrelevant jurisdiction? (1)

Anonymous Coward | about a year ago | (#43122775)

The 9th Circuit cover the all states west of and including Montana, Nevada and Arizona. The ruling has no direct impact outside of those states. DHS has no choice if they want to do what they have been than to appeal. In the mean time this ruling does put limits on DHS in the area of the 9th.

That round the world trip I was planning will now be going eastward.

A.B.A.I.L.
Anonymous Because I Am Lazy

Re:Irrelevant jurisdiction? (1)

ColdWetDog (752185) | about a year ago | (#43122783)

Sorry to break this to you, no matter what Rush Limbaugh thinks, the Ninth Circuit [uscourts.gov] is still** part of the United States.

** Yes, Virginia - California, Washington, Hawaii and Oregon are included within the legal and political boundaries of the United States. We're not so sure of Alaska, but since the Canadians don't want it and you can't see Russia from there, it appears we're stuck with it.

Re:Irrelevant jurisdiction? (1)

I'm New Around Here (1154723) | about a year ago | (#43123271)

Sorry to break this to you, no matter what Rush Limbaugh thinks, the Ninth Circuit [uscourts.gov] is still** part of the United States.

** Yes, Virginia - California, Washington, Hawaii and Oregon are included within the legal and political boundaries of the United States. We're not so sure of Alaska, but since the Canadians don't want it and you can't see Russia from there, it appears we're stuck with it.

Wow. You go out of your way to bash Rush and Palin, and show your ignorance of basic geography. I would leave this one alone, but some gullible people might actually believe you without fact-checking your statement, and I don't want them to be misinformed.

Re:Irrelevant jurisdiction? (1)

meerling (1487879) | about a year ago | (#43123329)

Actually you can see Russia from there. Well, specific parts of course, it's not like you get ultravision or anything. :)

Re:Irrelevant jurisdiction? (2)

the eric conspiracy (20178) | about a year ago | (#43122855)

Nope.

The decision of this court is binding on all the lower courts in its district. It covers pretty much the western 1/5 of the United States as the 9th is the largest district (at one time it even covered part of China). It's possible courts in other districts will use it as precedence as well unless a different circuit court rules the opposite way.

Conflicting appellate rulings are one of ways to trigger Supreme Court interest.

http://en.wikipedia.org/wiki/Precedent#Type_of_precedent [wikipedia.org]

4th Amendment Applies At Border (5, Funny)

fustakrakich (1673220) | about a year ago | (#43122581)

Great! Now we need to apply it in the interior of the country.

wow, fight the police state. (1)

Nadaka (224565) | about a year ago | (#43122627)

I am glad to see a judge actually take a stand against the tidal wave that has been eroding our liberties.

Nice (2)

fuego451 (958976) | about a year ago | (#43122691)

Another confirmation of our constitution by the courts that the TSA, the DOJ and any law enforcement officer can completely ignore.

Re:Nice (0)

Anonymous Coward | about a year ago | (#43122745)

Another confirmation of our constitution by the courts that the TSA, the DOJ and any law enforcement officer can completely ignore.

TSA != customs

Company policy... (1)

niftymitch (1625721) | about a year ago | (#43122723)

Company policy should mandate full system encryption and yes individual file encryption. The policy should present a clear policy and contact point for legal search requests.

Should you be asked to enter a password request then verify that paper has been served on your company. Carry a hard copy of the company policy.

We hear time and time again that data of thousands of individuals is lost or at risk and this includes govment agencies.

Even a personal laptop can contain HIPPA protected information that is covered by regulations and law. HIPPA information is interesting in that it is compartmentalized yet managed like Classified/Secret/TopSecret data and also requires training and background checks.

Trade secrets, pre-release copyright material, multi-party data like contracts can require notification and involvement of the other parties domestic and international.

Do not forget there is a method and system to cache and encrypt large files via a cloud service where the key to access the files is small compared to the data and is only available and accessed via an encrypted VPN link. Simple extension to GIT, Mercurial and "repo" (etc.). Companies can change the key and thus the key-hash to trigger a scrub of the data in a way that is not different than the entry of a fail safe VPN/server access key, ssh connection, local media and removable media to include OCR decoding of text from paper records recovered from digital camera images of text or some other common encoding bar code, or 2D code blocks of any high school geometric shape or projection.

If only this would apply to non-US citizens. (1)

dorfed (2860881) | about a year ago | (#43122785)

From the USCIS site
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=02729c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=02729c7755cb9010VgnVCM10000045f3d6a1RCRD:
"
Legal Disclaimer
... There have been rare cases in which a particular program is of such general interest and importance that the OCC has rendered a formal legal opinion. As a matter of policy, we have determined that providing legal opinions to private parties in matters that may come before immigration officials is inappropriate. For this reason, we are unable to express an opinion on the issues submitted by the public.

"

Re:If only this would apply to non-US citizens. (1)

dorfed (2860881) | about a year ago | (#43122869)

In other words, complaints from immigrants will be ignored.

Rest of the country (1)

wisnoskij (1206448) | about a year ago | (#43122847)

Now if only we could get the constitution to be applicable to the rest of the country we would be golden.

Better summary of decision (5, Informative)

Freddybear (1805256) | about a year ago | (#43122951)

Volokh has a somewhat more thorough summary of the decisions here:

http://www.volokh.com/2013/03/08/interesting-ninth-circuit-en-banc-on-computer-searches-of-course-citing-orin/ [volokh.com]

        [A] border search of a computer is not transformed into an “extended border search” requiring particularized suspicion simply because the device is transported and examined beyond the border.... [T]he fact that the forensic examination occurred 170 miles away from the border did not heighten the interference with the defendant’s privacy, and the extended border search doctrine does not apply, in this case in which the defendant’s computer never cleared customs and the defendant never regained possession....

        [T]he forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment.... [I]t is the comprehensive and intrusive nature of forensic examination — not the location of the examination — that is the key factor triggering the requirement of reasonable suspicion here.... [T]he uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property....

        [In this case,] the border agents had reasonable suspicion to conduct an initial search at the border (which turned up no incriminating material) and the forensic examination. The en banc court wrote that the defendant’s Treasury Enforcement Communication System alert, prior child-related conviction, frequent travels, crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program aimed at combating child sex tourism, taken collectively, gave rise to reasonable suspicion of criminal activity. ...

        [P]assword protection of files, which is ubiquitous among many law-abiding citizens, will not in isolation give rise to reasonable suspicion, but ... password protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity.... [T]he existence of password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer.... [T]he examination of the defendant’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.

Are these the end times? (1)

dunkindave (1801608) | about a year ago | (#43123045)

Congressmen demanding the White House give citizens due process, the Obama Administration petitioning the court so that people are free to photograph police, and now the courts saying the 4th Amendment applies to people at the border? What is next, cats and dogs sleeping together?

The "Elite" factor (4, Insightful)

Somebody Is Using My (985418) | about a year ago | (#43123121)

Why is my first reaction to this article, "I wonder what the name was of the politician/judge/rich guy who had his device grabbed by the DHS because it had a passworded file on it?"

Because, sadly, recent court rulings have left me so jaded and cynical that I can't believe that they would side with the people on a matter of rights unless one our Elite masters had been affected by it first.

Of course, not that it matters much. Cops have been known to ignore unfavorable rulings. Just look how often cops still get in a snit when they catch somebody filming them doing their job, despite repeated rulings that it is perfectly legal. Who watches the watchmen? Increasingly, nobody.

Original Intent (0)

Anonymous Coward | about a year ago | (#43123421)

I know original intent is not the only valid way of interpreting the constitution, but if you look at the list of complaints in the Declaration of Independence, by many of the same people who went on to write the constitution, Unwarranted searches at the border was their specific complaint.

First Drone Killing On US Soil (0)

Anonymous Coward | about a year ago | (#43123695)

Our lovely Janet Napolitano has penned an URGENT request of the President.

In short she demands the killing of the 9th Circuit Judge and all, on the basis that
they are now Enemy Combatants, Enemy Of The State, and Persona Non Gratis.

She, On Woman's Day, demands the immediate killings.

Question: Will Obama give Favor to his Favorite ?

BTW, the pilot who spotted a Homeland Security Drone near JFK Airport is now in Syria,
at a CIA rendition and torture prison undergoing 'electric' methods of 'pleasure'.

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