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District Court Holds That Border Searches of Computers Require Reasonable Suspicion:
I've blogged before about the practice sometimes used in child pornography investigations of waiting until a suspect has an international flight and then searching the suspect's computers at the airport under the Fourth Amendment's border search exception. (Read the details here, and for more on the border search exception, read here.) In light of those posts, I thought I might point out that a district court in L.A. has taken a different course, ruling that border searches of computers are "non routine" under Ninth Circuit precedent and therefore require reasonable suspicion before they are constitutionally reasonable.

  The case is United States v. Arnold, --- F.Supp.2d ----, 2006 WL 2861592 (C.D.Cal. Oct 2, 2006), decided by District Judge Dean Pregerson. An excerpt:
[T]the oft-quoted phrase "searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border" belies the fact that highly intrusive searches are not reasonable merely because they take place at the border. Flores-Montano, 541 U.S. at 152-53 (quoting Ramsey, 431 U.S. at 616).

Although neither a warrant nor probable cause is needed for ordinary searches of persons and things crossing the border, cause is required for more intrusive border searches. Certain border searches are highly intrusive because they implicate the "dignity and privacy interests of the persons being searched." Flores-Montano, 541 U.S. at 152. As a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing. United States v. Aman, 624 F.2d 911, 912-13 (9th Cir.1980) (holding that to conduct a strip search, the authorities must have a "real suspicion" that the person is smuggling contraband and that "real suspicion" is "subjective suspicion supported by objective, articulable facts". . ..

A search is reasonable in scope only if it is no more intrusive than necessary to obtain the truth respecting the suspicious circumstances. United States v. Palmer, 575 F.2d 721, 723 (9th Cir.1978). The objective facts must bear some reasonable relationship to the degree of suspicion. Price, 472 F.2d at 547. For example, to conduct a body cavity search, which is considered a "serious invasion of personal privacy and dignity," a "clear indication" of possession of narcotics must exist. Henderson, 390 F.2d at 808 (citing Rivas v. United States, 368 F.2d 703, 710 (9th Cir.1996)).

Hence, an invasive border search must be limited in scope, and the scope must meet the reasonableness standard of the Fourth Amendment. Price, 472 F.2d at 574. In the Ninth Circuit, such non-routine searches require at least reasonable suspicion. United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir.1994); see also United States v. Ek, 676 F.2d 379, 382 (9th Cir.1982) (holding that there must be a "clear indication" or "plain suggestion" that the person is carrying contraband in his or her body to conduct a body cavity search). In the case of non-routine, invasive searches that implicate personal privacy and dignity, customs agents must possess a reasonable suspicion.

The Supreme Court recognized in Flores-Montano that highly intrusive searches of persons implicate dignity and privacy interests. Likewise, opening and viewing confidential computer files implicates dignity and privacy interests. Indeed, some may value the sanctity of private thoughts memorialized on a data storage device above physical privacy. See United States v. Molina-Tarazon, 279 F.3d 709, 716 (9th Cir.2002) (recognizing that "government intrusions into the mind--specifically those that would cause fear or apprehension in a reasonable person--are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature"), rev'd on other grounds, Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311.

The government argues that the officers searched Arnold's tangible property, not his person, and therefore the search was routine and did not require reasonable suspicion. However, as the Court recognized during the evidentiary hearing, the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object.

A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records. Attorneys' computers may contain confidential client information. Reporters' computers may contain information about confidential sources or story leads. Inventors' and corporate executives' computers may contain trade secrets. In this case, Arnold kept child pornography on his laptop and in his storage devices; however, "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Montoya de Hernandez, 473 U.S. at 548 (Brennan, J., dissenting).
  The interesting question is whether the Ninth Circuit will agree, a question that the Ninth Circuit didn't need to get to in the earlier Romm decision because the defendant had waived the argument in that case. If the Ninth Circuit does agree with Judge Pregerson that computer searches are "non routine," there's a decent chance that this case would be the first computer search and seizure case to get to the Supreme Court. (Incidentally, if there are any law students reading this who are looking for student note topics, this issue is worth considering.)
Nobody Special:
I think the weak spot in Judge Pregerson's analysis is his use of Molina-Tarazon. In all of the border search cases I've read (although I have not exhausted the subject, so people should feel free to correct me), the emphasis has been on the physical intrusiveness of the search - tearing a car down into its components, body cavity searches, etc.

Computer searches are non-destructive, and, while perhaps inconvenient, potentially non-invasive of privacy. If the border officials are conducting heuristic searches ("find" functions and whatnot) rather than directly reading every single file, the intrusion into the personal thoughts is lessened. I'm not persuaded that the fact that a border agent, searching for child pornography, might instead discover that you like some strange fetish, is enough of a personal embarassment, as people routinely carry personally embarassing physical items through customs searches.
10.11.2006 1:29pm
Sigivald (mail):
Nobody: If that was the only kind of search being done, I imagine you'd be right (but IANAL).

But if they're "after" someone specifically and waiting for a border-search exception to find something incriminating, I suspect they might go farther, copying the entire contents of the drive for perusal at leisure (and perhaps even attacking cryptographic protection, if any is in use, though anyone using it competently would be far beyond the means of a police department to attack - on the other hand, many people are plainly incompetent) and I'd tend to agree that that seems pretty invasive.

(I guess the question then becomes, what's reasonable suspicion for such a search? They seem, in cases like this, to already have plenty of what a layman would call reasonable suspicion, but not probable cause, but the exact legal standard is beyond my ken.)

I can't find a copy of the decision in whole online, so I have no idea if that was done in this case or not. Perhaps Professor Kerr, who presumeably has access to the entire decision, can enlighten us as to the specific nature of the search, or if/why it doesn't matter, if in his opinion it doesn't?

(Though at some point any searching of laptop contents at all isn't really "routine", unless they start doing it randomly, or to everyone, is it?)
10.11.2006 1:54pm
Waldensian (mail):
I have quite a lot of confidential and attorney-client privileged material on my laptop. If a complete search of that laptop is "routine" and thus presumptively authorized whenever I cross the border, I suppose one could argue that it is a gross breach of my ethical and fiduciary duties to carry the laptop internationally.
10.11.2006 2:05pm
Bobbie (mail):
The Brennan line at the very end of the quoted material is a great one liner.


"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Montoya de Hernandez, 473 U.S. at 548 (Brennan, J., dissenting).
10.11.2006 2:06pm
Nobody Special:
Sigivald writes:


But if they're "after" someone specifically and waiting for a border-search exception to find something incriminating, I suspect they might go farther, copying the entire contents of the drive for perusal at leisure (and perhaps even attacking cryptographic protection, if any is in use, though anyone using it competently would be far beyond the means of a police department to attack - on the other hand, many people are plainly incompetent) and I'd tend to agree that that seems pretty invasive.


That's why I was careful to define what sort of search I am referring to (the heuristic searches, or even examinations of all photographs without reference to papers, or what have you).

I agree that there would be serious problems with customs making mirrors of the drive, rather than inspecting the original while it is impounded at the border; that inspection would, in my mind at least, remove the search from the "border control" realm (remember, the purpose of the exception to the 4th Amendment is that the government has strong powers to prevent the importation of contraband) and shove it back into routine 4th Amendment analysis. At least, that's what I would tell my judge I thought back when I was clerking.

The cryptographic attacks are a more difficult matter, but I think that those are legitimate (subject to the condititons I just laid out). Consider this analogy: I'm coming back from Colombia with a suitcase, in which is a fairly large, fairly heavy, hermetically sealed medical container with several locks on it. Customs suspects I am a cocaine mule. However, because it is sealed, drug dogs cannot get a scent from the box, and I refuse (or am unable) to unlock it. Customs is entitled to break the lock to inspect the contents (TSA, too, for domestic flights). I don't see why breaking what is, effectively, an electronic lock should be treated any differently.
10.11.2006 2:52pm
Medis:
Well, it is about freakin' time (some may recall that I was calling for such a decision in one of our prior discussions of this topic).

I also haven't seen the full opinion, but in partial response to Nobody Special:

One of the basic problems with Fourth Amendment issues is that new cases are often distinguishable on the facts from old cases, and so I think we have to ask deeper questions, such as WHY body cavity searches are nonroutine and require reasonable suspicion, but suitcase searches are routine and do not. And I don't think it can be because one is more destructive, but strictly speaking body cavity searches aren't necessarily more destructive. Rather, the courts have concluded that body cavity searches are a greater invasion of privacy, but that doesn't really tell us where laptop searches should fall, since they are also distinguishable from suitcase searches.

Indeed, I think part of the underlying logic of the ordinary suitcase rules is basically a waiver idea: by putting some tangible item into your suitcase and taking it over a border, knowing it is subject to a routine search, you have effectively waived your right to keep that item private. But you have an option: you can choose not to put that item in your suitcase and take it with you, but rather can leave it at home.

I think that logic as applied to tangible items put in suitcases doesn't really apply to the electronic materials stored on portable devices like laptops. Typically, we don't just pack up our laptop for the trip--rather, it is something we have been using to store information long before the trip, indeed often as our home or work computer, and technological advances have simply made it possible for what would once have been confined to such a location (home or work) to travel with us. But in that sense, a laptop is less like a suitcase, and more like a portable part of our "home" or "work".

So, I think a good case can be made that a laptop search is indeed a greater invasion of privacy than a suitcase search, and should in fact be treated as a nonroutine search subject to a reasonable suspicion requirement. And I just hope our federal judges are not so out of touch with common experience that they are aware of how portable electronic devices really have become an extension of private spaces for many people.
10.11.2006 5:53pm
OrinKerr:
Bobbie,

The line is actually Frankfurter's, not Brennan's. Brennan was quoting FF, and I just took the parenthetical out to make the quote cleaner.
10.11.2006 6:15pm
elChato (mail):
<i>The interesting question is whether the Ninth Circuit will agree
</i>

Yeah well I wouldn't bet the ranch against it.
10.11.2006 7:31pm
ReaderY:
We should call a spade a spade. There is no right to personal security at the border. Claims that all searches are reasonable etc. don't make sense, and rightly so. They are efforts at rationalization with inapplicable principles, just as courts sometimes attempt to apply business relationship law to church-clergy, domestic, and other non-business relationships -- and find, unsurprisingly, that attempts at application don't seem to make sense. Outside the border, there is no personhood. As Johnson v. Eisentrager put it, the very concept lacks "extraterritorial application," at least so far as non-citizens are concerned.

What happens at the border is a matter that seems to be in flux at present. But if personhood exists and people have rights at the border, then given that the concept of personhood also doesn't have "prenatal application", one could argue it ought to exist at the border there as well.
10.12.2006 12:27am
Tom Cross (mail) (www):
Nobody writes:

The purpose of the exception to the 4th Amendment is that the government has strong powers to prevent the importation of contraband.

I think its worth asking what it means to "import contraband" and whether thats something that people usually do with laptops. To me, importing involves leaving the country without a particular thing, obtaining it in another country where it is perhaps more readily available, and then bringing it back into the country with you.

Laptops mostly contain information. People looking to move information around usually use the Internet. The idea that you'd fly somewhere in order to move bits around in this day and age seems silly. Certainly, someone could do it, but would you expect people to do it regularly, and check for it as part of a routine program that is genuinely oriented toward controlling the importation of contraban?

It seems that a laptop search program leverages the government's strong powers to prevent the importation of contraban to engage in investigations which have nothing at all to do with the importation of contraban. They are focused on information that was obtained domestically, and merely possessed at the border, going out and coming back in. I think there is a substantial difference, and I don't think this is what the creators of this exception had in mind.
10.12.2006 12:53am
Medis:
Tom Cross,

That is an excellent point.
10.12.2006 11:27am
anonVCfan:
Full opinion is here.
10.12.2006 12:46pm
hey (mail):
Tom Cross:

I'd suggest that anyone who wanted to securely transport data across borders is best advised to use sneakernet rather than the Internet. Even people who own their own secure, encrypted, physical network (aka US DOD, etc) will use physical couriers for data rather than transmit it if it is sensitive enough, taking the information from a secure, shielded computer and carrying it to a secure, shielded computer.

Given this situation, it is reasonable to believe that people went physically to another place to put information on their laptop, rather than use the internet. You wouldn't do that for regular information ("hi mom", etc) but for a new product design or bid details... there's a good chance. If you're halfway intelligent (which most criminals aren't) you would only use physical couriers (though best to use "misaddressed" fedex or similar common carrier ruse) for any sort of incriminating data.

As to the legalities... IANAL, but let's look at the practical protections against having your car torn apart. "Reasonable Suspicion" for the war on some drugs means giving off a hinky vibe, which truly means that any customs officer can do anything they want, claiming that you were "uneasy". They can then use the sitting dog (getting a drug dog to respond to a suspect is rather easy, and one has to assume that every handler has a signal for the dog to give off a false positive if they need "reasonable grounds") and then inspect your laptop for evidence of your drug smuggling ring (check the word and xls files, plus look through the jpegs for photos of co-conspirators). Since we have crappy heuristics for image search (essentially no one tags their personal photos, and they are intensely idiosyncratic) the officer HAS to browse through all of them, and any child pr0n is "in plain view".

So no matter what this decisions comes down as, any suspicious border guard will get to search your computer, for anything.

As a betting man (when the bets cost nothing more than pseudonymous pride on the internet) I'll say that the 9th upholds while the Supremes reverse.
10.12.2006 4:18pm
Mark Field (mail):

Outside the border, there is no personhood.


This will come as a surprise to the Supreme Court.
10.12.2006 8:01pm
Tom Cross (mail) (www):
Hey:

I think you're overstating things. Most people do not have a threat model that involves Van Eck monitoring and successful attacks against well implemented cryptosystems. I feel quite comfortable with my assertion that most smuggling of information occurs over the Internet.

Some entities do face these risks, such as state intelligence agencies, but those people are also not going to take the risk that there won't be "reasonable suspicion," for the reasons you state. They aren't likely to get IDed by a customs agent doing a "routine search."

A much simpler counterpoint to mine is that people may buy a pirated vcd or some obscene porn overseas and bring it back in, possibly after ripping it to a hard drive. I doubt many people travel for this specific purpose, but they may do it incidental to travel, just as people occaisonally bring back more alcohol than they are supposed to. I'm sure customs thinks that deterring this is within the scope of their investigative authority.

However, my observation has to be coupled with the arguement that Medis made: one's laptop is really an extension of one's home or office, and is inevitably full of material that was obtained domestically, and cannot be reasonably culled prior to travel.

Therefore, far and away the primary fruits of these searches are going to be domestic possesors of contraband and not actual smugglers. I don't think the nature of the bulk of the practice ought to be ignored because there are justifiable fringe cases. It seems where the line between routine and non-routine ought to come into play.

Put another way, a routine search for smuggling, justified in light of the 4th amendment by the need to stop smuggling, ought to catch smugglers. If the vast majority of the criminals identified by the program are not smugglers, the justification that "we're fighting smugglers" becomes less credible.

Of course, "we're fighting terrorism" has become a justification that has trancended the requirement for credibility, so you can file that as a reason you might be right about the Supreme Court. I hope, however, that you are wrong, even in light of your observations about "reasonable suspicion" (which seem correct to me). The reason is that if you have no requirement for reasonable suspicion and you mix in solid state storage devices and high bandwidth desktop networking you get the customs service backing up all traveller's hard drives as they pass through. I have a hard time reconciling that future with the idea of individual liberty.
10.13.2006 1:48am
Medis:
Incidentally, I don't think it is implausible that a majority of the current Supreme Court would affirm this decision. As cases like Kyllo show, the Fourth Amendment can make for some strange bedfellows, particularly when the issue revolves around how to apply old Fourth Amendment doctrines to issues raised by new technologies.
10.13.2006 10:23am