counting down the days to getting back to the Land of the Free,
Posted on 07/27/2006 11:39:13 PM PDT by Marius3188
"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.
What: A business traveler protests the warrantless search and seizure of his laptop by Homeland Security at the U.S.-Canada border.
When: 9th Circuit Court of Appeals rules on July 24.
Outcome: Three-judge panel unanimously says that border police may conduct random searches of laptops without search warrants or probable cause. These searches can include seizing the laptop and subjecting it to extensive forensic analysis.
What happened, according to court documents:
In January 2004, Stuart Romm traveled to Las Vegas to attend a training seminar for his new employer. Then, on Feb. 1, Romm continued the business trip by boarding a flight to Kelowna, British Columbia.
Romm was denied entry by the Canadian authorities because of his criminal history. When he returned to the Seattle-Tacoma airport, he was interviewed by two agents of Homeland Security's Immigration and Customs Enforcement division.
They asked to search his laptop, and Romm agreed. Agent Camille Sugrue would later testify that she used the "EnCase" software to do a forensic analysis of Romm's hard drive.
That analysis and a subsequent one found some 42 child pornography images, which had been present in the cache used by Romm's Web browser and then deleted. But because in most operating systems, only the directory entry is removed when a file is "deleted," the forensic analysis was able to recover the actual files.
During the trial, Romm's attorney asked that the evidence from the border search be suppressed. The trial judge disagreed. Romm was eventually sentenced to two concurrent terms of 10 and 15 years for knowingly receiving and knowingly possessing child pornography.
The 9th Circuit refused to overturn his conviction, ruling that American citizens effectively enjoy no right to privacy when stopped at the border.
"We hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine," wrote Judge Carlos Bea. Joining him in the decision were Judges David Thompson and Betty Fletcher.
Bea cited the 1985 case of U.S. v. Montoya de Hernandez, in which a woman arriving in Los Angeles from Columbia was detained. Police believed she had swallowed balloons filled with cocaine, even though the court said they had no "clear indication" of it and did not have probable cause to search her.
Nevertheless, the Supreme Court said police could rectally examine De Hernandez because it was a border crossing and, essentially, anything goes. (The rectal examination, by the way, did find 88 balloons filled with cocaine that had been smuggled in her alimentary canal.)
Justices William Brennan and Thurgood Marshall dissented. They said the situation De Hernandez experienced had "the hallmark of a police state."
"To be sure, the court today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches," Brennan wrote. "If this is the law as a general matter, I believe it is time that we re-examine its foundations."
But Brennan and Marshall were outvoted by their fellow justices, who ruled that the drug war trumped privacy, citing a "veritable national crisis in law enforcement caused by smuggling of illicit narcotics." Today their decision means that laptop-toting travelers should expect no privacy either.
As an aside, a report last year from a U.S.-based marijuana activist says U.S. border guards looked through her digital camera snapshots and likely browsed through her laptop's contents. A London-based correspondent for The Economist magazine once reported similar firsthand experiences, and a 1998 article in The New York Times described how British customs scan laptops for sexual material. Here are some tips on using encryption to protect your privacy.
Excerpt from the court's opinion (Click here for PDF):
"First, we address whether the forensic analysis of Romm's laptop falls under the border search exception to the warrant requirement...Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant. For Fourth Amendment purposes, an international airport terminal is the "functional equivalent" of a border. Thus, passengers deplaning from an international flight are subject to routine border searches.
Romm argues he was not subject to a warrantless border search because he never legally crossed the U.S.-Canada border. We have held the government must be reasonably certain that the object of a border search has crossed the border to conduct a valid border search....In all these cases, however, the issue was whether the person searched had physically crossed the border. There is no authority for the proposition that a person who fails to obtain legal entry at his destination may freely re-enter the United States; to the contrary, he or she may be searched just like any other person crossing the border.
Nor will we carve out an "official restraint" exception to the border search doctrine, as Romm advocates. We assume for the sake of argument that a person who, like Romm, is detained abroad has no opportunity to obtain foreign contraband. Even so, the border search doctrine is not limited to those cases where the searching officers have reason to suspect the entrant may be carrying foreign contraband. Instead, 'searches made at the border...are reasonable simply by virtue of the fact that they occur at the border.' Thus, the routine border search of Romm's laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under "official restraint."
In sum, we hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine."
Now can we enforce our borders against illegals?
Jeez, to bad all judges don't feel the same way!
Deleted photos? The guy should not have agreed to a search but this still is a very harsh sentence. I wish we were as vigorous in deporting illegal alien criminals.
This ruling might actually have a major effect on me. My client is preparing a lawsuit against the US, and has provided me with a laptop that contains many confidential documents--including many developed under attorney-client privilege. Does this mean that I have to curtail my international travel with this laptop? Even if I set up an FTP site and store files remotely, if the Feds are allowed to do warrantless forensics, they could conceivably obtain privileged information.
Meanwhile, we are not enforcing border law against known violators.
Very interesting implications in this ruling.
Yes, and you can be convicted if you get e-mail spam that contains it and you delete the message as soon as you see what it is. Not saying that's what this case was, but based on others I've looked at, that's happened. :-( Even those who were activists against (e.g., CyberAngels) were in danger of felony convictions. Watch what links you click or what URLs you type--you may become a felon in an instant. :-(
What kind of criminal history does this guy have for canada to keep him out? They let hamas set up shop there.
FTPing over the border doesn't allow for viewing of deleted files or the secret hidden cache that many don't realize is created by Internet Explorer.
Why can't they just raid the FTP site where the data landed without a warrant? The data crossed the border. That's all they claim they need to know.
Yes, it has happened. (Well, I can't confirm 10-15 years since it hasn't been that long and I think one person got out after losing only 3 or so by getting it overturned.) The problem is that many bad police and prosecutors are concerned more with scoring a "conviction" than actually stopping criminal behavior. :-(
President Bush required an exemption for his DUI conviction, IIRC.
I realize that the case had to do with whether a border was crossed or not, but it was the forensic analysis without warrant that I was unaware of.
Note that Clinton and Gore are also banned for admitting marijuana use.
What you say is true ...... Though in this case this man had a criminal past thus more likely was savoring degenerate kiddie porn photos. But they were deleted which indicates a wish to flush them.
They'd need a warrant to obtain logs from an FTP site. These are warrantless searches and analyses.
A short time ago, my company enforced a new security policy of PGP encrypting every laptop hard drive in the inventory. The concern was preventing theft of confidential information in the event of a lost or stolen laptop. Happily, this should also be a good defense against such government over-reach as this. For those who are managing their own laptop, this might be a good precaution to consider. Some users have reported performance problems with their installation, but I've had no difficulty, and it's nice to know that my data is secure (or at least "PGP secure" - - - who knows what tricks NSA and similar agencies have up their sleeves, but at least most thieves will be unable to get at the data, and probably border guards as well).
I remember using PGP long ago and it was basically, public enemy #1. The Feds hated it. That was years ago, when it was shareware and BBS days.
This is what happens when mere possession (esp in the form of computer files and all the dangers of unasked for downloads, viruses, etc) is against the law.
Easy to frame someone up, hard to prove innocence when 'possession' is guilt.
Do away with 'possession' laws.
Encrypt your entire hard drive, after replacing old with a new one.
Perhaps a short poem
Do you know how much effort it takes to actually find and convict those who actually harmed someone else?
"But Brennan and Marshall were outvoted by their fellow justices, who ruled that the drug war trumped privacy, citing a "veritable national crisis in law enforcement caused by smuggling of illicit narcotics." Today their decision means that laptop-toting travelers should expect no privacy either."
So once again the drug war is used to trump our rights. gee who woulda thought /sarc
You really need to learn what happens in the lives of the victims of pedophiles. And those who start with kiddie porn fuel an industry that shatters lives.
How can you prove it was him sitting at his laptop when the browsing was taking place?
Years ago, before traveling to Beijing (and completely uncertain what I would encounter there), I bought a copy of Clean Disk Security to wipe all company-proprietary info from my laptop.
Turned out it was unnecessary. (But --oops-- I seem to have lost my copy since...)
"Even if I set up an FTP site and store files remotely, if the Feds are allowed to do warrantless forensics, they could conceivably obtain privileged information."
You could encrypt. Of course if you do that they'll claim you're a terrorist and lock you up until you give up the info.
"Easy to frame someone up, hard to prove innocence when 'possession' is guilt."
Laws written by lazy bureaucrats FOR lazy bureaucrats.
You won't like this, but...I agree with this three-judge panel!
My guess is, there is A LOT more to Stuart Romm than deleted child porn on his laptop.
What? Do you realize what you just said? You agree with Gondring? No way this could ever happen. On a "Border" thread, no less. What is going on here? Has someone been preaching "Can't we all just get along?"
Ok, seriously, USF, keep my number handy next time you cross the border. If ICE gets you, I will be a character witness for you.
Use it regularly to securely erase deleted files.
What this decision means to Stuart Romm is beside the point. The legal precedent is ominous for plenty of innocent people who accidentally stumble across illegal images.
I know I know... at first I was waiting for the trick question, and later on my head was spinning from the thought of what I just admitted.
Perhaps I'm just too busy and happy counting down the days to getting back to the Land of the Free, and having my laptop inspected, or perhaps I'm losing it.... take your pick. ;o)
counting down the days to getting back to the Land of the Free,
Heck, we've been searching laptops for years; but only if we suspect criminal activity.
I'm not stepping into this one, I've still got funny brown stuff on my boots from the last time.
Nah, this isn't a 'border thread' it's all about child pornography.
Found two references to perps with the same name here:
Massachusetts to Florida: Stuart Romm, a former administrative law judge from Brockton, Massachusetts was extradited to Florida to face charges of transmitting child pornography and soliciting sex over the Internet from a young boy, who was actually a Florida sheriff.[110]
http://www.uri.edu/artsci/wms/hughes/ppncpt5.htm
Distribution of child pornography has expanded exponentially with advances in computer technology and increased availability and popular use of the Internet. Southern Nevada’s ICAC has been instrumental in developing cases against persons who commit child exploitation crimes. Federal laws regarding sexual exploitation include: Transporting, Receiving, Distributing, Manufacturing, or Possession of Child Pornography; Coercion and Enticement of Children for Sexual Acts; Travel With Intent to Engage in Sex With a Minor; Child Prostitution; and Child-Sex Tourism. Between January 2000 and April 2005, 108 individuals have been charged with federal child pornography-type offenses in the District of Nevada. Persons prosecuted include Stuart Romm, sentenced on November 22, 2004, to a minimum mandatory 180 months in prison and lifetime supervised release for his jury convictions on Receipt and Possession of Child Pornography; Kevin Eric Curtain, sentenced on October 25, 2004, to five years in prison for his jury convictions on Travel with Intent to Engage in a Sexual Act With a Juvenile and Coercion and Enticement of a Minor; and Mark Raffensparger, sentenced on October 12, 2004, to 41 months in prison and lifetime supervised release for his guilty plea to Possession of Child Pornography.
http://www.usdoj.gov/usao/nv/home/pressrelease/june2005/children060705.htm
Yes, no sense trying to prove guilt. Make them prove their innocence... right?
Anybody somewhat competent with computers can make a laptop look any way they want. All they need is a network connection. It's the single best way to utterly destroy someone. Nobody will believe them. Their life is over.
G4s have a Secure Trash option.
Push the button and the trashed items can not be recovered.
In theory you would retrieve your client's files from a separate site, read them,trash any down loads, then secure the trash.
I hearby re-adjust my earlier stance, and give credit to both you and Fred Nerks for making me do some homework of my own, and putting me on the right track...
There is a lot more to this story, and this Romm character, and it is not pretty. IMHO, given the circumstance, they took the correct course of action (Click View as HTML):
[PDF] File Format: PDF/Adobe Acrobat - View as HTML Jason F. Carr, Las Vegas, Nevada, for appellant Stuart Romm. Nancy J. Koppe (briefed) and Daniel ... Defendant Stuart Romm connected to the internet from a ... www.ca9.uscourts.gov/ca9/newopinions.nsf/D4958BAAF34B2292882571B500580F96/$file/0410648.pdf?openelement -
At the British Columbia airport, Canada’s Border Services Agency discovered that Romm had a criminal history and stopped him for questioning. Romm admitted he had a crimi- nal record and was currently on probation. Agent Keith Brown then asked Romm to turn on his laptop and briefly examined it. When Brown saw several child pornography websites in Romm’s “internet history,”
Brown asked Romm if he had violated the terms of his probation by visiting these websites. Romm answered “Yes,” and also said, “That’s it. My life’s over.”
(snip)
Meanwhile, Canada’s immigration service had decided not to admit Romm into the country. Romm withdrew his applica- tion for entry and was placed under detention until the next flight to Seattle. Agent Brown then informed U.S. Customs in Seattle that Romm had been denied entry and possibly had illegal images on his computer.
(snip)
In an unrelated Florida state court prosecution, Romm pleaded nolo contendre to two counts of promoting sexual performance by a child and one count of child exploitation be computer.
(snip)
By his own admission to ICE, Romm repeatedly sought out child pornography over the internet.
(snip)
Romm then described to the agents how he used Google to search for child pornography websites. When he found pic- tures he liked, Romm would keep them on his screen for five minutes and then delete them. Romm used the terms “save” and “download” to describe this operation. While staying in his hotel room in Las Vegas, Romm viewed child pornogra- phy and masturbated twice, while or shortly after viewing the child pornography; he claimed to have then deleted such images. In all, Romm used the internet for approximately six- and-a-half hours during his week-long stay in Las Vegas
(snip)
Defendant Stuart Romm is charged in Count 2 of the Indictment with Knowing Possession of Child Por- nography, in violation of Title 18, United States Code, Section 2252A(a)(5)(B). In order for Defen- dant Romm to be found guilty of that charge, the Government must prove each of the following ele- ments beyond a reasonable doubt:
First, That Defendant Stuart Romm knowingly pos- sessed a laptop computer with a hard drive that con- tained three or more images of child pornography;
Second, That the images of child pornography know- ingly possessed by Defendant Stuart Romm, had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by com- puter.
(snip)
He also acknowl- edged Canadian authorities knew about his prior conviction. It was against this background that Romm acknowledged hav- ing “lapses” from his “therapy,” and viewing images of child pornography.
Do not believe in anything simply because you have heard it.
Do not believe in anything simply because it is spoken and rumoured by many.
Do not believe in anything simply because it is found written in your religious books.
Do not believe in anything merely on the authority of your teachers and elders.
Do not believe in traditions because they have been handed down for many generations.
But after observation and analysis, when you find that anything agrees with reason and is conducive to the good and benefit of one and all, then accept it and live up to it.
- Gautama Buddha
My initial impression was this wasn't some accidental site he visited and the fact that Romm was denied entry by the Canadian authorities because of his criminal history, I knew there had to be a lot more to this story. I think Homeland security has better things to do than search a laptop, unless they have a good reason to.
People crossing a border don't have ANY expectation of privacy, and can be searched without probable cause or a warrant.
I hope you accept the compliment. ;o)
>Fred, per post #46...USF CAN believe it if Jan says it!" ;o)
I'm glad Fred changed his mind!
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