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9th Circuit OKs Border Guards' Search of Traveler's Laptop
law.com ^ | April 22, 2008 | Mike McKee

Posted on 04/23/2008 12:33:29 PM PDT by houston1

The 9th U.S. Circuit Court of Appeals ruled Monday that border control agents who found child porn on a traveler's laptop didn't violate the man's right to be free from unreasonable searches.

"We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Judge Diarmuid O'Scannlain wrote.

O'Scannlain went on to say that the defendant "has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers' luggage that the Supreme Court and we have allowed."

He was joined by Judge Milan Smith Jr. and U.S. District Judge Michael Mosman, sitting by designation from Oregon. ... In reversing, the 9th Circuit ruled that Pregerson erred in holding that a "particularized suspicion" was necessary before a laptop computer could be searched. The court also rejected Arnold's claim that the border agents had exceeded their authority by conducting a search in a "particularly offensive manner." ... Marilyn Bednarski, who represented Arnold, said the case has been widely followed "because laptops are so much a part of our lives, and the level of intrusion [allowed by the 9th Circuit ruling] into what we keep stored in our laptops is extraordinary."

Bednarski, a partner in Pasadena, Calif.'s Kaye, McLane & Bednarski, said she plans to seek an en banc review by the 9th Circuit. She said she could understand that customs agents need to turn on a laptop computer to make sure it's not a bomb or a container full of illegal substances. But opening files bothered her.

"What this decision allows [border agents] to do without limits," she said, "is keep opening up and keep reading forever."

The ruling is U.S. v. Arnold, 08 C.D.O.S. 4533.

(Excerpt) Read more at law.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Government
KEYWORDS: 4thamendment; abuseofpower; courts; donutwatch; government; papersplease; policestate; searches
welcome to the U.S.S.R! everyone (esp. that travel abroad) should start encrypting their personal files if you don't want the government to have access to your private info, you can always "forget" the password later
1 posted on 04/23/2008 12:33:30 PM PDT by houston1
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To: houston1

“welcome to the U.S.S.R! everyone (esp. that travel abroad) should start encrypting their personal files if you don’t want the government to have access to your private info, you can always “forget” the password later”

I’m sure there’s some part of the Patriot Act or the Homegrown Terrorist Act that would allow them to ignore Habeas Corpus and ship you off somewhere until you remembered the password.


2 posted on 04/23/2008 12:37:18 PM PDT by dljordan
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To: houston1

Why carry child porn across the border when you can go to a safe place to view it, like your local library?


3 posted on 04/23/2008 12:37:57 PM PDT by dblshot
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To: houston1

The Border Patrol and Customs will ask you for the password, especially if you use whole-disk encryption. As for encrypted “personal files”, they ask you to open them.

You can refuse, but as with other border searches, they don’t have to let you in and don’t have to give you your laptop back.

I go to Customs auctions, and there are entire luggage sets that come up for auction, with the locks forced open. I imagine in a few years laptops will be available there, minus hard drive.


4 posted on 04/23/2008 12:38:24 PM PDT by DBrow
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To: houston1

Interesting... A computer hard drive has a certain combination of I and O on it and a guy goes to jail.

I have nothing to hide anyway but I still encrypt everything important for the sheer hell of liking my privacy and because I can.


5 posted on 04/23/2008 12:39:49 PM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: houston1

http://www.truecrypt.org/


6 posted on 04/23/2008 12:41:59 PM PDT by rednesss (Fred Thompson - 2008)
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To: DBrow

I just hide everything in plain site, encrypt a file then rename it whatever is too boring to bother with. Load the hard drive up with so many games and data that it would be like looking for a needle in a haystack.


7 posted on 04/23/2008 12:42:59 PM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: houston1

Interesting ruling.

While I’m against child porn and we should deal with this scum very harshly...it does seem as if it goes against the new found “privacy” right the supremes recently invented.

Considering this is the 9th, I’m starting to think they like to be overruled so that their rules will become the law of the land. In other words...they want this practice to stop and have all courts follow it...so they purposely rule in such a manner that the supremes will have to take the case and overrule them making it the law for all courts.

I don’t like the fact that if I cross the border they can read all my files and trade secrets. What is on my laptop that I can’t possibly transmit encrypted via the internet? So my point is inspecting the files is of no real value. They just got lucky and got this scum with child porn.


8 posted on 04/23/2008 12:44:30 PM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: for-q-clinton

I don’t like the government being able to look through my personal effects, esp. with the recent revelations of the fbi using the patriot act for everything under the sun, not just catching terrorists. What if they plant a file on your computer and charge you with possession of it, it could be difficult to prove your innocence. That said, I keep all my files on an external drive since I’ve had a few laptops die unexpectedly, so they wouldn’t find anything anyway, it’s just the principle of the thing.


9 posted on 04/23/2008 12:59:16 PM PDT by houston1
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To: houston1; All

http://volokh.com/posts/1197670606.shtml

According to this there was a ruling stating that you have a 5th amendment right to not give them a password. I wonder how this relates to safe combos in a warranted search?


10 posted on 04/23/2008 1:02:51 PM PDT by DBrow
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To: dblshot

ROTF LMAO!!! This is hilarious because this wierdo got busted by my 118lb 5’4” wife viewing inappropriate web pages in our library and she laughed him out! She said that she was so mad about it because it was during the childrens reading time and this sicko was being a pervert and did the first thing that came to her mind and that was to make fun of him.
But on a serious note, I vehemently disagree with this bull crap of searching personal technology. I have everything password protectedbut am not sure that will keep the wolves at bay.


11 posted on 04/23/2008 1:08:15 PM PDT by killermedic ("discipline isn’t reserved for times of combat....only tested there.")
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To: houston1

Wait’ll they start searching laptops for illegal mp3s.


12 posted on 04/23/2008 1:10:17 PM PDT by weegee (Vote Obama 2008 for a bitter America.)
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To: weegee

Not only mp3s, but movies, too. Imagine ripping a Japanese disk in Japan, of a movie not licenced in the USA, and getting caught for copy infringement?

Or having a bunch of ripped domestic DVDs, illegal under DCMA.
It’s not just porn that piques their interest.


13 posted on 04/23/2008 1:20:00 PM PDT by DBrow
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To: DBrow

It may seem “far fetched” to think that customs agents would be doing the work of the MPAA, but that is what we got to when Clinton was in power.

There was a limit on bringing 2 beanie babies into the country so as to thwart smuggling and forgeries.

Are backup CD-Rs of albums “legal”? What about an ipod with 10,000 songs in it? Papers please.


14 posted on 04/23/2008 1:36:16 PM PDT by weegee (Vote Obama 2008 for a bitter America.)
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To: weegee

Beanie Babies: Washington’s latest tempest in a teapot
http://www.cnn.com/US/9807/10/beaniegate/
July 10, 1998

“Beanie Babies are made in China for Illinois-based Ty Inc. At the request of Ty, the U.S. Customs Service has placed a limit of one Beanie Baby per family for people re-entering the United States.”


15 posted on 04/23/2008 1:37:37 PM PDT by weegee (Vote Obama 2008 for a bitter America.)
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To: DBrow
I wonder how this relates to safe combos in a warranted search?

You don't have to provide the combo, but it you don't they can cut open your safe. It's your choice, but if it's covered by the warrant, a locked safe only means it takes them a little more time and you end up with a damaged safe.

16 posted on 04/23/2008 1:40:43 PM PDT by untrained skeptic
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To: houston1
There is not the expectation of privacy when crossing the border that there is when one is in his home or even walking the streets. Administrative searches (i.e. ones that are not for criminal investigation purposes) are subject to the "reasonableness" clause of the 4th Amendment.

It is the same reason why security checkpoint monitors at airports do not have to have reasonable suspicion or probable cause to search people as they pass through to the secured area. I am just reciting SCOTUS precedent on this point.

17 posted on 04/23/2008 1:42:05 PM PDT by Clump (Your family may not be safe, but at least their library records will be.)
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To: houston1

There is no 4th amendment right at the border. Never has, never will, and rightfully so. Everything coming in over the border MUST be subject to as complete a search as possible. This was a man coming in through ~customs~, not cops on the street. There’s a huge difference and it is nothing new. It’s also absolutely necessary.

Customs agent’s power at the border is pretty much total. They can ~legally~ dismantle your car and give it back in a big box if they want to, and they don’t even have to fix it or pay for it.


18 posted on 04/23/2008 1:56:00 PM PDT by Ramius (Personally, I give us... one chance in three. More tea?)
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To: killermedic

Well maybe the library isn’t as safe as that after all. Good for your wife!


19 posted on 04/23/2008 1:57:06 PM PDT by dblshot
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To: Ramius

Customs agent’s power at the border is pretty much total.

As is the Coast Guards power to search your vessel at sea and if it’s commercial in port without a warrant or cause.


20 posted on 04/23/2008 1:58:59 PM PDT by dblshot
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To: houston1

The bottom line is that you should never travel across a national border with anything that is precious, irreplaceable, incriminating, or non-expendable. And this includes information.

Not only should software data be kept on a heavily encrypted thumb drive, and hard drive erased, but the hard drive should be “low level formatted” as well, to preclude efforts to recover data from it. Low level formatting software is usually available only from the hard drive manufacturer, and is unique to that hard drive.

Some companies do not permit their employees to travel internationally with laptops. They keep “blank” laptops with no hard drives at their offices, which are booted and operated from thumb drives, which also keep employee data.


21 posted on 04/23/2008 2:02:23 PM PDT by yefragetuwrabrumuy
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To: dblshot

Yup. As a former Coastie that did many boardings, I can attest to that.

It’s a power that the CG does try to use in moderation, though. Mostly.

A vessel at sea or entering port can be presumed to have crossed the 12 mile limit. A customs-level search is legal, but most of the time they’ll try to build a probable cause case anyway before they start cutting up the upholstery. It’s just better that way. But they don’t have to.


22 posted on 04/23/2008 2:07:48 PM PDT by Ramius (Personally, I give us... one chance in three. More tea?)
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To: houston1
My company requires whole hard disk encryption. The simple power on test would verify that it is a functioning computer, but I'll be damned if I would give those morons the password to permit it to boot.
23 posted on 04/23/2008 2:30:37 PM PDT by Myrddin
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To: houston1
Wow.
The Ninth Circus normally defends what it considers to be individual rights to the degree taht crimes are ignored.
I guess taht people hear "kiddie porn" and the 4th amendment disappears.
24 posted on 04/23/2008 7:45:02 PM PDT by rmlew (There is no god but G_d and Moses is his Prophet.)
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