Court Rules Fourth Amendment Applies To Border Inspection Of Electronics

While Rand Paul’s filibuster has attracted more attention, there are many civil liberties matters which are likely to affect far more Americans than the risk of being targeted by a drone. There has been a tremendous amount of negative news on some civil liberties issues, such as reproductive rights in the red states, but there was a victory for civil liberties in a court decision regarding privacy when crossing the border. Homeland security has claimed a right to search the content of laptop computers and cell phones without any reason. Having material password protected has been enough to claim potential security risks. The searches of computers could also apply to personal information on cloud-based systems connected by software to one’s computer but not physically present.

The Ninth Circuit Appeals court has ruled that the protections of the Fourth Amendment do apply in these cases. Techdirt analyzed the decision:

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. This is a huge ruling in favor of privacy rights.

The ruling is pretty careful to strike the right balance on the issues. It notes that a cursory review at the border is reasonable:

Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable. But going deeper raises more questions. Looking stuff over, no problem. Performing a forensic analysis? That goes too far and triggers the 4th Amendment. They note that the location of the search is meaningless to this analysis (the actual search happened 170 miles inside the country after the laptop was sent by border agents to somewhere else for analysis). So it’s still a border search, but that border search requires a 4th Amendment analysis, according to the court.

It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here….

Notwithstanding a traveler’s diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment’s reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.” Flores-Montano, 541 U.S. at 152. Likewise, the Court has explained that “some searches of property are so destructive,” “particularly offensive,” or overly intrusive in the manner in which they are carried out as to require particularized suspicion. Id. at 152, 154 n.2, 155–56; Montoya de Hernandez, 473 U.S. at 541. The Court has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis….

The issue of cloud-based information was also addressed:

The court is equally worried about the fact that the device is often just a portal to cloud based services, and how a search of a device might lead to access to that data, even if it’s been snug and secure “in the cloud” the whole time, rather than crossing the border:

With the ubiquity of cloud computing, the government’s reach into private data becomes even more problematic.12 In the “cloud,” a user’s data, including the same kind of highly sensitive data one would have in “papers” at home, is held on remote servers rather than on the device itself. The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box. Notably, although the virtual “safe deposit box” does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border. With access to the cloud through forensic examination, a traveler’s cache is just a click away from the government.

It would also be safer to remove programs directly connecting to cloud-based services such as Dropbox when traveling, with the data still available by connecting over the internet. Uninstalling programs which make such services appear like another hard drive on a laptop would prevent the stored data from being as obvious to anyone inspecting a computer.

Rand Paul vs. Drones and Black Helicopters

In looking at the threats to civil liberties which we face, I cannot disagree with Rand Paul in opposing the use of drones to kill Americans who are not engaged in combat against the United States (criteria which is somewhat vague). It was good to see an someone actually speaking during a filibuster, even if at times it sounded like a paranoid rant about black helicopters and Tea Party fantasy. We saw more grandstanding than actual defense of civil liberties, with Rand Paul (like his father)  having a rather mixed record in this area. There are other more pressing matters of civil liberties which actually impact the lives of Americans, such as the right wing’s use of government to restrict reproductive rights. I will present an example of a victory on civil liberties which is far more significant than Rand Paul’s filibuster in the next post.

The irresponsibility of the Republican leadership in both Houses of Congress, more concerned with opposing Obama than either governing or even providing a responsible opposition, has created a situation where even a clown like Rand Paul provides a mixed moment of hope. Paul’s actual effort was a failure (as discussed in more detail in the several links in the paragraph above) but it at least did include an attempt to discuss an actual issue. A more through discussion of the use of drones, rather than obsessing about the quite rare cases of targeting Americans, would provide a more meaningful example of needed Congressional oversight. Regardless of the degree of support for Barack Obama, it is unrealistic to expect restrictions on the Executive branch to come from the President.

I do not agree with the all-out criticism of drones, seeing advantages to their use as opposed to putting Americans in direct harm. Question as to their use first depend upon whether the military action is justified, regardless if by troops on the ground or by drones. Use against Americans, while definitely something which must be watched, has been a rare event in unusual circumstances. Collateral damage is a consequence of war regardless of technique and criticisms of drones based upon deaths of innocent civilians is not a sufficient argument against their use.

The ability to target individuals with drones does create new concerns, and requires check and balances which are now absent. I have supported oversight analogous to the FISA Court, as others have also proposed, and the Obama administration is considering. This would provide some degree of judicial oversight, ending the idea that any individual (regardless of whether an American citizen) could be targeted for execution by drones with no oversight whatsoever. In addition, this would ensure that there is a record of the justification for the use of drones which could be reviewed by Congressional committees which might uncover any pattern of abuse. Ultimately such information should be declassified so presidents would know that their conduct would be judged by history. Unfortunately Rand Paul’s filibuster on targeted killings of Americans on American soil pandered to the paranoia of the black helicopter crowd as opposed to serious consideration of the issue.

Besides, if Rand Paul really thought that Obama would use drones against American citizens he wouldn’t have stood in one place for thirteen hours while criticizing Obama.