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Thread: 9th Circuit says 4A DOES apply at the border

  1. #1
    Campaign Veteran skidmark's Avatar
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    Jan 2007
    North Chesterfield VA

    9th Circuit says 4A DOES apply at the border

    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. 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.
    Need time read and digest the opinion, but the quick scan seems to indicate a SCOTUS case coming up real soon. Heck, DHS/CBP may even be the ones to appeal it to SCOTUS.

    stay safe.

    ETA - analysis and discussion here:
    Last edited by skidmark; 03-09-2013 at 06:27 AM.
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  2. #2
    Join Date
    Jan 2012
    earth's crust
    once on US soil, the constitution applies of course .. every word .. go figure

  3. #3
    Regular Member Baked on Grease's Avatar
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    Jul 2011
    Sterling, Va.

    Re: 9th Circuit says 4A DOES apply at the border

    Quote Originally Posted by davidmcbeth View Post
    once on US soil, the constitution applies of course .. every word .. go figure
    One thing I have always wondered... Why does crossing the border matter for how our agents act? They swore an oath to uphold the constitution, but I don't recall the oath saying they only had to uphold it while on this side of the border. To me, as far as their own actions (as an agent working) are concerned they should be governed by that oath in all they do even if they go outside the country. They are still acting under authority derived from that constitution, they should be held to it ajytime they act with that authority.

    Anything else is just asking them to setup a checkpoint just over the border and then they can claim they are acting under Mexican laws and the US consitution has no say in how they conduct themselves becaus all their actions wete merely on Mexican soil.

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  4. #4
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    Kent, Washington, USA
    I have always been curious what the border patrol would ever thing could be illegally being brought into the country on an electronic device..... A PC HDD can only contain digital information, and anyone trying to bring in "illegal" digital information would find it WAY easier to just send it highly encrypted over the internet. Not to mention, what is the worst their could be? Some movies or music or something? It's not like you can move drugs, sex slaves, or ivory on a PC HDD.... And if they have probable cause for seizure based on something like you being a wanted criminal hacker then they don't need a special rules to search your PC or force you to provide your password. They can just arrest you for the probable cause reason then have a court compel you to unlock your PC. The whole thing is stupid on the face of it.

  5. #5
    Regular Member
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    May 2007
    , ,
    Quote Originally Posted by Nightmare View Post
    Do not trust "the cloud" as one would not trust G00gle.
    Actually, cloud+encryption is a good way to go around.

    Here is one of the easiest recipes:
    1. Get 'truecrypt'
    2. Create encrypted file container
    - it is a file, however, it mounts as a drive letter in your WinPC (or to mountpoint if you are *nix)
    3. Store this file in your preferred cloud (GDrive / Dropbox / whatever)
    4. Store any critical info inside that container.
    5. If extra paranoid - do not autoconnect to your cloud service

    Results ==>
    - You have innocuous device without putting "full system encrypt" into it
    - No random person would know which of the cloud services to look for
    - Still can't get to your stuff even after gaining access to that file through extorting your cloud provider

  6. #6
    Campaign Veteran marshaul's Avatar
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    Aug 2007
    Fairfax County, Virginia
    Anyone who uses the term "the cloud" is, by default, incorrect.

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