Search and Seizure

Silver Lining in Supreme Court Not Overturning A Decision About Computer Searches at Border

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Wired the other day tried to see the bright side of a seemingly crummy recent Supreme Court action re: searching our electronic devices at borders.

~Aphrodite / Foter.com / CC BY-NC-ND

The jist:

the justices let stand an appeals court's decision that U.S. border agents may indeed undertake a search of a traveler's gadgets content on a whim, just like they could with a suitcase or a vehicle. That is known as the "border search exception" of United States law, where travelers can be searched without a warrant as they enter the country. The Obama administration has aggressively used this power to search travelers' laptops, sometimes copying the hard drive before returning the computer.

However, in a rare win for digital privacy, the 9th U.S. Circuit Court of Appeals' ruling last year concluded that a deeper forensic analysis by border officials using software to decrypt password-protected files or to locate deleted files now requires "reasonable suspicion" of criminal activity — an outcome the justices refused to tinker with today.

That means, in essence, the authorities must have some facts, rather than a hunch, that illegal activity is afoot to perform a forensic analysis on electronics seized along the border of the western United States.

"The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails," the San Francisco-based appeals court ruled (.pdf) last year.

As is often the case where cases set forth good legal principles, the specific person involved in the case, Howard Cotterman, did not benefit from the principle, since the Court believed in his case the authorities did have such reasonable suspicion.

Surprisingly the government did not take issue with the appellate court's conclusion that reasonable suspicion was required for a deeper inspection of gadgets, which have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects.

The government argued that reasonable suspicion of criminal activity was present. The government told the justices that Cotterman "was suspected of sex tourism" (.pdf) and "petitioner was suspected of being involved in child pornography as part of Operation Angel Watchdog, which targeted registered sex offenders who frequently traveled internationally.

Reason 24/7 on another recent crummy lower court decision on border searches of our electronics.

Hat tip: Laura Gandler

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  1. So there’s a clearly defined line between search and deeper search?

    1. Meh, one is open the box, look inside. The other is open the box, do chemical analysis of the contents and possibly dismantle the box looking for hidden compartments.

      1. So does opening my emails or my calendar or my texts and reading them count as “opening the box and looking in” or opening the box and doing further analysis?

        Because in my view, anything beyond turning the phone on and looking at the icons constitutes a further search than simply opening the box and looking inside.

        1. It’s a good question. As a technical guy (in other words, ignoring the legal aspect of it) I would base the line on the level of effort and work. Unencrypted files in easy to access folders I would describe as ‘looking in the box’.

          The moment you need to introduce special tools to view the contents of the drive or memory cards– doing anything at the file system level or, obviously, some kind of decryption effort, you’re doing chemical analysis and looking for hidden compartments.

          I mean, legally speaking we kind of already have a definition for that in the non-technical realm. Sort of the difference between a cop seeing something out in the open vs. having to open small compartments and go places his eyes don’t naturally see. I know that’s not a very good analogy because I agree that it’s a perfectly reasonable argument to say that if you can’t see the contents of my laptop by looking at the outside, you’re done. ONce you have to turn it on, sign in and dig through folders, you’re now conducting a search. All I’m trying to do here is predict where the courts will probably go.

  2. I find the searches of electronic devices particularly disturbing because there is no point. It is just done to fuck with people and project authority. It can’t accomplish anything because the internet exists and there is no way to stop information from crossing borders. There is no purpose or justification for it besides “because we can”.

    1. I’m not sure I understand what you’re saying here. If possession of certain kinds of data is illegal, then searching your hard drive may very well turn up that data.

      I agree that the electronic search is high bullshit, but to say that it’s ineffective on its face seems wrong.

  3. And Doherty is the Senior Editor? The fox is guarding the henhouse.

    The jist gist:

  4. So we can expect to see child porn sniffing dogs to justify those searches?

    Or hell, just have the dog alert for drugs whenever they want to, then they have reasonable suspicion to decrypt away.

    And if there isn’t a dog available, well the fact that they guy looked nervous and refused to decrypt the files for you is might suspicious in and of itself so you can be pretty sure he was up to no good.

    In otherwords the silver lining is non existant because once they have permission to search they can easily manufacture the suspicion needed for the deeper forensic search

    1. expect to see child porn sniffing dogs

      Lots of those plus they’ll stop anyone who looks like Warty.

      1. If they can save just one person’s asshole from Warty, then I’d almost support it. Almost.

    2. For that matter, I have to wonder how many times the NSA has unofficially analyzed a drive and found items of interest, *then* a search warrant is obtained to officially examine the drive. We know they do that sort of thing without attribution. There have been a couple child porn cases where the prosecution pushed and appealed for months to get someone to decrypt their hard drive. The level of effort that has been put into getting access to some people’s drives makes a lot more sense if they know they’re going to get something.

    3. Well, study after study shows that dogs suck at detecting drugs, yet SCOTUS’s Florida cases said it’s all fine and dandy.

  5. Also, can anyone identify any valid reason for the non forensic search of electronic files?

    If you were up to no good the odds that you would leave incriminating files sitting in your “my Documents” directory as you crossed a national border are so remote that they would only ever catch the very dumbest criminals/terrorists this way

    1. There just looking for porn in your Taxes folder.

      1. My porn is in the “Porn” folder.

        1. I have porn in every folder im sure

      2. If they find ANY porn then basically they own you because at that point you are now “suspected” of possibly having child porn unless you have proof in the folders that every girl is over 18 which you wouldnt.

        1. Whenever anyone touches any computing device I own, I always hold up my hands in that defensive stance and say, “I assure you, all the models are at least eighteen years of age”.

          Great conversation starter.

    2. I wish it were that easy to be innocent. The fact of the matter is that a huge number of “regular peoples'” computers have been hijacked without their knowledge as components of botnets. Some of these botnets are used to disseminate child porn. So there are many thousands of people who harbor child porn on their hard drives without knowing it. And mere possession of child porn is all that is required for a conviction.

  6. So TrueCrypt is your friend.

  7. Note to self: Buy an external hard drive and a burner phone before traveling overseas.

    1. At the very least, back up your drive and leave it home… even for travel within the “land of free and home of the brave”.

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