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Does the Border Search Doctrine Apply To Searching Computers if the Government Moves the Computer Away from the Border Before Searching It?:
One of the fun aspects of computer search and seizure law is that computers often allow facts that just don't come up very often in traditional cases. The new facts raise intriguing and new questions that test the basis of existing law, forcing courts to choose which principles of preexisting law should apply to the new facts. A border search opinion from last week, United States v. Cotterman, provides a fascinating example.

  In the Cotterman case, agents seized a computer at the Mexico-Arizona border and wanted to search it, but they apparently didn't have a trained analyst nearby. As a result, they let the computer owner go on into the U.S., and in the meantime they drove the computer to a government forensic analyst in Tucson, about 170 miles away. The analyst in Tucson searched the computer two days later and found child pornography.

  Here's the question: Does the border search exception apply to the search of the computer that was seized at the border but actually searched in Tucson two days later? The question is interesting because searches and seizures ordinarily occur at the same place. If evidence is seized at the border, it normally will be searched at the border. Under the border search exception, no cause is required. The dynamics of computer searches are different. A comprehensive search for evidence of a computer generally requires a careful analysis at a lab by a trained forensic analyst. Asa result, computers normally are seized in one place and then searched later on in a different place. So what happens when the location of the search and seizure diverge? Should the law follow the location of the seizure or location of the search? If the law follows the former, the computer can be searched without cause; if it follows the latter, some cause must first be established.

  In the Cotterman case, the court ruled that the law should follow the time and place of the search rather than the seizure. By bringing the computer to the forensic analyst instead of the analyst to the computer, the border search exception didn't apply. The court focused on Ninth Circuit caselaw involving "extended border searches," which have ruled that as time and space passes from the initial border crossing, a search can only be justified based on reasonable suspicion — and that only after more time/space passes from the border is a search no longer even an "extended border search." From the opinion:
  When a search is removed in time and place from the border, the courts have repeatedly held that this represents a greater intrusion on the person requiring that under the totality of the circumstances, customs officers had reasonable suspicion of criminal activity in order to justify the search, the so-called "extended border search." United States v. Whiting, 781 F.2d 692, 695 (9th Cir.1986); United States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985); United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985); United States v. Bilir, 592 F.2d 735, 740-741 (9th Cir.1979). As the Court in Alfonso stated: "We recognize, of course, that time and place are relevant, since the level of suspicion for extended border searches is stricter than the standard for ordinary border searches. Extended border searches occur after the actual entry has been effected and intrude more on an individual's normal expectation of privacy. Therefore, extended border searches must be justified by "reasonable suspicion" that the subject of the search was involved in criminal activity, rather than simply mere suspicion or no suspicion." Alfonso, 759 F.2d at 734. In Alfonso, the search took place thirty-six hours after the ship docked at Los Angeles harbor.
  At some point, the discrepancy in time and distance will become so great that it is no longer an extended border search, thus requiring probable cause and a warrant. Again, there is no bright line test, but an examination of the totality of circumstances, including time, distance and law enforcement efforts is required. Alfonso, 759 F.2d at 736; United States v. Sahanaja, 430 F.3d 1049, 1054-1055 (9th Cir.2005). For instance, had the forensic examiner in this case placed the Cottermans electronics equipment at the end of the queue, conducting the examination in a month or two, it could be argued the search was so removed in time as to no longer be an extended border search. We need not reach that question here, where the facts show reasonable diligence and speed in conducting the computer forensic examination. Therefore, the Government need only show reasonable suspicion, not probable cause, to justify the search in this case.
  Because the court concluded that the government lacked reasonable suspicion, the motion to suppress was granted.

  I find this analysis unpersuasive, and I think that if the Government appeals — which I would guess it will, given the ICE guidelines allowing what it did — the Ninth Circuit will very likely reverse. The Ninth Circuit cases concluding that the place of the search were relevant were all cases in which the search occurred at the same place as the seizure. It makes sense that the location of the seizure would matter: The idea behind the border search exception is that expectations of privacy vary based on location, so the the law should adjust the threshold of cause to correspond to the extent of the experienced intrusion.

  But location doesn't seem to matter when a computer is taken from a suspect at the border and searched offsite. To be sure, the computer is seized, and the duration of the seizure must be constitutionally reasonable. Cf. United States v. Van Leeuwen, 397 U.S. 249 (1970). But the location of the search has no obvious relevance to the intrusion experienced by the defendant, who doesn't know where the computer is searched or in all likelihood even care. Indeed, it often happens that agents in one district will ship off a computer to another district for analysis: It would be quite odd if the courts based the legality of the search on where the forensic analysis just happened to be done. Why does it matter that the computer went to the analyst instead of the analyst to the computer given that the owner of the computer was elsewhere?

Ricardo (mail):
As obnoxious as I find computer searches and seizures at the border to be, I have to agree this is not a sound decision.

After all, if I fly into Las Vegas International Airport from abroad, I'm already pretty far from any physical "border" but that shouldn't affect the degree to which I can be searched by ICE. It would then be completely arbitrary to say ICE can search my computer but only with a x-mile radius of the international airport -- and would also make it more likely my computer would be held for an unreasonable amount of time waiting in the queue.

The practical considerations that allow searches and immigration formalities at inland airport terminals should allow computer searches at off-site facilities.
3.2.2009 10:50pm
Gabriel McCall (mail):
I disagree, Orin. The question that comes to my mind is 'why do we need more flexible search criteria at a border, in the first place?' To the extent that the government thinks it reasonable and necessary to infringe more greatly on its citizens' privacy at the national border than anywhere else, it must be for the purpose of keeping certain kinds of things out of the country altogether. If you send the laptop to Tucson to be searched, that purpose is no longer being served.

Put another way, if you think it's safe enough for the government to deliver this laptop to a city in the US interior, you must by default assume that it's safe for the laptop's owner to do similarly, absent any reasonable suspicion otherwise. If there's a belief that the item is, or even may be, something which should not be allowed onto US territory, then the government has no business sending it deeper into US territory to be searched. And if there is no such belief, then the government needs more than whim and curiosity to justify a search.
3.2.2009 10:54pm
OrinKerr:
Gabriel writes:
To the extent that the government thinks it reasonable and necessary to infringe more greatly on its citizens' privacy at the national border than anywhere else, it must be for the purpose of keeping certain kinds of things out of the country altogether. If you send the laptop to Tucson to be searched, that purpose is no longer being served.

Put another way, if you think it's safe enough for the government to deliver this laptop to a city in the US interior, you must by default assume that it's safe for the laptop's owner to do similarly, absent any reasonable suspicion otherwise. If there's a belief that the item is, or even may be, something which should not be allowed onto US territory, then the government has no business sending it deeper into US territory to be searched. And if there is no such belief, then the government needs more than whim and curiosity to justify a search.
I believe you misunderstand the purpose of the border search exception.

The idea isn't that there is some psychic harm to the nation caused by the mere existence of contraband inside it, a harm that gets worse as the contraband moves in closer to the "heart" of the nation. Rather, the idea is to stop contraband from being possessed by individuals inside the U.S. in violation of U.S. law. Possession of contraband by a government agent in the course of official duties isn't a crime, and doesn't become more of a crime by virtue of getting closer to Peoria.
3.2.2009 11:02pm
zippypinhead:
I think the odds of the District Court being reversed on appeal are pretty high. This is the way full forensic searches after border seizures are typically done nationwide -- among other reasons, because it's just as impractical to require that a HDD be forensically searched in real-time at a border crossing as it is for HDDs to be forensically searched in real time on premises being searched with a warrant. And on the facts of this case, the border agents were faced with stuff that was not possible to parse without a full computer forensics lab analysis: passworded files and, ultimately, contraband that had been deleted from the normal file system.

No court requires on-site forensic computer searches when there's a warrant. I recall that some Districts in the Ninth Circuit take very restrictive views of the search aspect of searching and seizing computers generally, and impose (sometimes impossibly) tight deadlines on the timeframe for post-seizure searches - such as requiring off-site forensic searches of seized media be done in not more than 60 days, absent grant of an extension upon a showing of good cause. But the Court of Appeals has, to my knowledge, never required such District restrictions, which are themselves vastly less stringent than what the District Court did here.

Of course, the entire question of whether it's good policy to permit border searches without reasonable suspicion - especially when you're dealing with electronic media - is quite controversial. Clearly Constitutional, but controversial. But that's why we pay the big buck$ to those guys in Congress. If such searches are something that our elected officials feel should not be done, I'm sure they can figure out how to draft appropriate restrictive legislation.
3.2.2009 11:03pm
John (mail):
No search occurs at the border.

Most border searches occur within, at best, some feet from the border.

Now that we have established that it is OK to do the searching away from the border, we are only talking about questions of degree, which must, it seems to me, be informed by considerations of reasonableness.
3.2.2009 11:08pm
Soronel Haetir (mail):
Deleted files pose an even greater problem to my mind when dealing with border searches. At least in terms of charging possession of child pornography in interstate commerce. Or is the border crossing itself (attempt) enough, even though he didn't have legal possession of the laptop inside the US (because it didn't clear)? Can someone who travels to the Netherlands be prosecuted upon return for drug transactions even though the only trace left is in their blood, possession through consumption? Even though the consumption was legal in the place undertaken?

This just seems like a nasty jurisdictional issue, aside from how odious I find the border search doctrine itself.
3.2.2009 11:17pm
Gabriel McCall (mail):
the idea is to stop contraband from being possessed by individuals inside the U.S. in violation of U.S. law.

But that idea applies just as equally to a guy walking down the street in Peoria with his laptop. If you can't stop him there and take his laptop, what makes the border different?

(The idea that border searches of electronic devices are a useful tool in fighting terrorism is ridiculous. Joe Terrorist can just as easily buy his laptop after he gets into the States and download his data in an encrypted tunnel.)
3.2.2009 11:28pm
Ricardo (mail):
But that idea applies just as equally to a guy walking down the street in Peoria with his laptop. If you can't stop him there and take his laptop, what makes the border different?

That's getting into the question of whether there should be a border exception at all. As far as the law is concerned, there should be such an exception and that exception is so that contraband can be prohibited from entering the U.S. It is analogous to immigration laws that prevent undesirable people from entering the U.S. or public health and agriculture laws that prohibit people, animals or plants from carrying communicable diseases. You can argue about whether that analogy applies to child pornography -- which is already prevalent in the U.S. -- but that's a policy argument that belongs in Congress, not in the courts.

So given that there is a border exception in law and that the exception exists to prevent the distribution or possession of contraband brought in from outside the U.S. in violating of the law, transporting a laptop 120 miles away from an ICE inspection facility under the supervision of federal law enforcement doesn't thwart the intent of the border exception and aids in law enforcement.
3.3.2009 12:17am
OrinKerr:
Gabriel McCall,

I don't know you, as far as I can remember, but I assume by your comments that you think the border search is unpersuasive generally, and you see it as appropriate to use that to help reason to your conclusion of what the law requires. Just to be clear, I am doing something pretty different: I'm interested in applying these facts to existing law, whether I find that law desirable or not.
3.3.2009 1:30am
Gabriel McCall (mail):
It is analogous to immigration laws that prevent undesirable people from entering the U.S. or public health and agriculture laws that prohibit people, animals or plants from carrying communicable diseases.

Would undesirable immigrants or travelers potentially carrying communicable diseases from outside the country be sent to Tucson for quarantine and testing, or would they be isolated and confined as close to the border as possible?

I'm not arguing against the border exception. I don't agree with it, but that's not what I'm arguing here. But if the purpose of the border exception is to keep bad stuff from coming past the border (understanding that "the border" is not a laser-thin line), you have to be keeping bad stuff from coming past the border, not sending it to Tucson. If what you're trying to do is keep bad stuff from existing inside the United States, then the same rules apply as for any other bad stuff which might exist inside the United States.

Possessing contraband is always illegal, so a mere desire to enforce the laws against contraband doesn't justify different treatment of potential contraband at the border from potential contraband in Peoria. Either the situation at the border is special, or it isn't; you can't have it both ways. The border exception , if there is to be one at all, only logically applies to the extent that it's being used to actually maintain the integrity of the border.
3.3.2009 1:31am
ReaderY:
If the 9th Circuit rules that eh location of the search is what matters independent of the seizure, it can hardly object if the government simply ships all computers to a location in a more search-friendly circuit.
3.3.2009 1:53am
Ricardo (mail):
Would undesirable immigrants or travelers potentially carrying communicable diseases from outside the country be sent to Tucson for quarantine and testing, or would they be isolated and confined as close to the border as possible?

If the best long-term quarantine facility is in Tucson and it is possible to keep someone under quarantine while transporting them to said facility in Tucson, why not? That would be a call to be made by qualified medical experts and not by lawyers, in any case. And now that we've established that, the same consideration is even clearer in the case of child pornography on a laptop.

Again, the border exception doesn't exist to prevent certain goods from abroad from merely existing in U.S. territory. It is to prevent the possibility of those goods coming from abroad from circulating among the general public or from being possessed by a member of the public. Confiscating a laptop from a traveler at the border and sending it under supervision to an off-site location prevents the material from being circulated among the general public and prevents members of the general public (e.g. not law enforcement officials in the course of lawful, official duties) from possessing it. So it serves an entirely lawful purpose in line with the aims of the border exception.
3.3.2009 2:03am
OrinKerr:
Gabriel McCall,

Do you have any cases to back up your claims? Your vision of the law is quite contrary to the Supreme Court and appellate cases I have read, and I am curious where you are getting your statements about what the law requires and allows.
3.3.2009 2:15am
Visitor Again:
I've wondered about the justification for searching written words without warrant or probable cause at the border. I know the legal justification is found in a law passed somewhere around 1917. It authorized border searches for obscenity and unlawful advocacy. But very rarely, if ever, will written words satisfy the modern tests for obscenity or advocacy of violence or unlawful action.

First and fourth amendment interests intersect when written words are searched, as in searches of private papers or words on a computer. It seems to me there should be a requirement of probable cause or a warrant in such cases. Searches for photos or videos are another question, since they can be child pornography and perhaps even obscenity.

Yet there is authority allowing searches of written words at the border without warrant or probable cause.
3.3.2009 2:29am
Steve:
Is there no precedent outside the computer context? For example, if customs finds a mysterious powder during a border search and wants to send it off to the lab for testing, do they have to establish reasonable suspicion?
3.3.2009 2:50am
Ricardo (mail):
But very rarely, if ever, will written words satisfy the modern tests for obscenity or advocacy of violence or unlawful action.

What if I have the photocopied pages of a Harry Potter novel in my luggage as I'm clearing customs? That's not obscenity or illegal advocacy but still illegal and subject to seizure at the border. If the pages are scanned and stored as a PDF on my computer, that shouldn't change the analysis as far as the relevant laws are concerned.

Now, I think on policy grounds the ability to seize someone's personal laptop (or cellphone or PDA or whatever) should be restricted on the grounds that seizing it is depriving me of the use (maybe for a long period of time even) of something valuable that I lawfully own, that the seizure and deprivation of use will inconvenience me far beyond having my luggage ruffled through for an hour or so, and that it's likely to contain lots of personal information that is none of ICE's business. But it's not clear to me that the Constitution alone uniquely protects laptops.
3.3.2009 2:50am
OrinKerr:
steve,

Excellent question: I don't know of any such precedent. One recurring fact pattern would be chemical analyses for the presence of drugs, but the Supreme Court held in United states v. Jacobsen in 1984 that such tests are not searches. As a result, you don't get to the offsite seach issue.
3.3.2009 2:54am
Rich Rostrom (mail):
Orin: I don't see that this question has any particular connection to computers. Any sort of object might be seized at a border crossing and taken elsewhere for analysis. The item might be seized at some obscure location in the backwoods of Maine, or on the beaches of Texas - and have to be transported some distance just to bring it in out of the weather - say, to a garage where a vehicle might be disassambled to look for contraband in hidden compartments.

I would have included transportation to a lab for chemical analysis, but you have cited U.S. v Jacobson as holding that such tests are not searches. Still, there are many other forms of forensic examination that cannot be done on the spot.

The place of seizure is what matters; and of course, reasonableness of the time required for the examination.
3.3.2009 3:44am
Avatar (mail):
I think part of the problem is that most contexts allow for cursory examination at the border, but require some sort of probable cause for actual seizure or destructive examination.

It's perfectly permissible for a border agent to order you to open your trunk so that he can look inside. It's not permissible for him to look at you, decide you're probably a drug runner, and order your car's engine block disassembled.

This is a problem for computers because a cursory search is pretty useless in most cases - it'd be the equivalent of finding a pornographic novel in a semi packed full of used paperbacks. There are also profound privacy implications - if a border agent is going through your briefcase and finds it full of tax forms, he's not supposed to take pictures of each form so that the IRS can see if they're filled out properly.

I also have to wonder, who are all these people running around with child porn on unencrypted partitions? You'd think you'd know better by now. Frankly, if I was going to move a laptop across the border, I'd want to encrypt it just for safety's sake; whoever is on the other side of that border might want the information too, and they might not give a damn about your privacy.
3.3.2009 5:51am
George Weiss (mail) (www):
i had the exact same reaction as OK after reading the facts.
3.3.2009 7:43am
Barrister's Handshake (mail) (www):
Stretching an analogy here, but along the lines of Chambers v. Maroney, if there was justification for a warantless search at the border, shouldn't there be justification to search at the analyst's location?

Readers, will recall that in Chambers the Court dealt with the automobile exception, stating "For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment...there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained."

Now, I'm not likening laptops to cars, as laptops are not subjected to the "pervasive and continuing governmental regulation and controls" which characterize autos. But, the Chambers reasoning was grounded in the fact that the initial intrusion justified the subsequent search. In Cotterman the initial intrusion was based on the border exception. The search could have happened at the border without any 4th Amendment issues. What then is the Constitutional significance of conducting the search in Tucson, instead of at the border?

The facts of the case suggest that the owner of the laptop waited 8 hours at the border before being told the laptop would be seized. Then the search took 48 hours. If a search at the border taking 56 hours, during which the defendant would have no access to the computer is reasonable, it seems equally reasonable to seize the computer, send the defendant on his way and conduct the same search. As Orin suggests there seems to be no additional privacy interest implicated, at least if we measure the governmental conduct using a reasonableness standard, rather than running it through the requirement of the warrant clause.
3.3.2009 8:40am
xyzzy:
I've wondered about the justification for searching written words without warrant or probable cause at the border.

In the 1600s, books and newspapers could not be imported into England without license.

In that century, many people did possess —and reprint!— contraband newspapers imported from the Netherlands, and elsewhere. There are quite a few interesting cases.
3.3.2009 8:50am
OrinKerr:
Rich Rostrom writes:
Orin: I don't see that this question has any particular connection to computers. Any sort of object might be seized at a border crossing and taken elsewhere for analysis
Rich, recall what I wrote about this in the post:
One of the fun aspects of computer search and seizure law is that computers often allow facts that just don't come up very often in traditional cases. The new facts raise intriguing and new questions that test the basis of existing law, forcing courts to choose which principles of preexisting law should apply to the new facts.
(emphasis added)

The key point is not that computers raise facts that could never ever come up in tradiional cases. Rather, the point is that computers make dynamics routine that are theoretically possible in traditional cases but just as a practical matter come up so rarely -- if at all -- there is no legal precedent for how the law should apply. Thus, when you state, "The place of seizure is what matters; and of course, reasonableness of the time required for the examination.", I'm curious, do you have any cases to support that? If you were briefing this for the government, what cases would you cite?
3.3.2009 9:24am
gsmcneal (www):
On a related note, Professor Nathan Sales of GMU and Marcia Hofmann of the Electronic Frontier Foundation debated searches of laptops at the border in the Nov/Dec issue of the ABA National Security Law Report. It's a pretty good exchange, and is short which makes it a fun read:

See the Standing Committee's website HERE

Or get the issue directly HERE
3.3.2009 9:35am
elscorcho (mail):
Obviously I am not a lawyer, as my comments will prove. As a computer security analyst though I do have a comment to make. To me, searching a computer especially in the manner that forensic analysts do, is akin to a medical examination of a person. Would you be ok with American citizens being shipped to hospitals away from the border for medical exams that aren't based on any reasonable suspicion? If the search is so easily and unobtrusibly done that it doesn't require suspicion, why do you need a subject matter expert to do it? Like I said, I'm a computer analyst and deal in logic and progamming, so I rarely understand the law.
3.3.2009 10:56am
David M. Nieporent (www):
Would undesirable immigrants or travelers potentially carrying communicable diseases from outside the country be sent to Tucson for quarantine and testing, or would they be isolated and confined as close to the border as possible?
The former, if Tucson happened to have the best facilities to handle that sort of situation, which is why your argument doesn't work. Assuming one accepts the border search doctrine as legitimate to begin with, its purpose is not advanced by requiring the government to hold the suspected contraband within X feet of the border.


OTOH, I agree with Orin that the decision doesn't make sense, but isn't the larger point that the border search doctrine doesn't make any sense applied to laptops at all? Keeping physical objects (or people) out of the country is just analytically different than keeping virtual objects out of the country. Nobody is driving to Mexico to load up their laptops with child pr0n not available in the states and then smuggling it back across the border. (What these sorts of searches are really catching are people who have child pr0n on their computers and happen to bring their laptops with them when they cross the border.) The purpose of the border search doctrine is to keep contraband from being imported into the country, not to allow the government to catch people who already have contraband who happen to be dumb enough to venture near the border.
3.3.2009 11:14am
pintler:
What if ICE makes a bit for bit digital image of the drive at the border, and sends that off for analysis? Are such images admissible, in the way a photograph is if you have the photographer available to vouch for authenticity? If so, the result is the same.

Also, that would at least sidestep the objection that you're preventing the person from using their computer. I know I would not be a satisfied customer :-) if my computer was seized, at the border or elsewhere, and was kept for months before confirming there was nothing more interesting (boring?) than my vacation snapshots.
3.3.2009 11:17am
Tom Cross (www):
In my opinion, forensic searches of laptops are non-routine searches that require reasonable suspicion under the 4th amendment, and I think the courts will eventually reach the same view, unless Congress beats them to the chase with a statute.

Having said that, I think the conclusion of this court is reasonable, but they are only getting part of the picture, and it will take time for this to evolve into a complete picture that stands up to the sort of logical criticism being leveled at it in this thread.

Basically, the fact that they had to transport the laptop to a different physical location in order to do the analysis is an indicator that the search is too complicated to be considered "routine." Clearly, if they've got to go to all of this effort, its not a "routine" search. Its more intrusive then that - and reasonable suspicion is required.

This raises some obvious questions - what if they had the forensics lab on site at the border? Isn't the seizure really the problem here and not the location of the search. Yes, yes, it would still be non-routine if the lab was at the border and it is really the seizure that is the problem, but the court system hasn't gotten the full picture yet.

To a judge who (I'm guessing) may have limited knowledge of information technology a fact like "they had to fly 170 miles away to do the analysis" stands out as a clear indicator that this isn't just everyday business as usual at the border. Its easy to draw a bright line there. More lines will need to be drawn. It will take time for the complete picture to evolve. This is a step in the correct direction.
3.3.2009 11:52am
Eli Rabett (www):
Why does

Does the Border Search Doctrine Apply To Searching Computers if the Government Moves the Computer Away from the Border Before Searching It?


remind me of

How much wood could a woodchuck chuck if a woodchuck could chuck wood?
3.3.2009 11:57am
Bruce:
The new facts raise intriguing and new questions that test the basis of existing law, forcing courts to choose which principles of preexisting law should apply to the new facts.

That's a good description of what I think is interesting about Internet Law generally.

How much wood could a woodchuck chuck if a woodchuck could chuck wood?

IIRC, the answer is 28 pounds.
3.3.2009 12:31pm
Nony:
There also becomes the question in some of these forensic searches of exactly how much culpability there was on the part of the person entering the United States. Generally speaking, here: One can easily get some... interesting material inadvertantly by trying to find, for example, evening entertainment in Mexico City. After crying out, "My eyes! My eyes!" once can attempt to delete it and try to forget that it was ever on the computer. But the computer doesn't forget. How about when one's teen child looks up a friend's Facebook profile with pictures of said friend in a situation obviously without parental guidance? The cache is cleared, the parent may not know such a site was ever visited. What about a refurbished computer? What about the other data on the computer that had not been deleted and placed out of standard methods of retrieval?
More specifically"
Also, when did CD cease being "Compact Disk" and become "computer diskettes" in law cases? And a batch of CDs that randomly showed up a couple of months later combined with keeping copies of personal items with no bearing on the putative focus in this case shows a general sloppiness, in the I'm not sure I'd trust my innocence to these guys sense. Even if this guy wasn't a very trustworthy character at the start.
3.3.2009 12:42pm
Working Man:
Does the border search exception apply to the search of the computer that was seized at the border but actually searched in Tucson two days later?


There are very few cases available, but a few state courts have extended the, "if seized by one agency, another may examine it" rationale to mean seized items can be transferred. 808 P.2d 156. Although usually an inventory needs to be taken on the spot to insure nothing is taken, planted, etc. A "01101111011011100110010100100000011011110110011001100110" copy of a hard drive is not a difficult task, and perhaps it should be required as an inventory of the computer before it is shipped off for analysis. In fact I dont see the need of the government to have the computer at all.

If you view something "obscene" while in another country and "delete it" before coming back, why should you be held to answer for it, when for most lay persons it is considered gone forever once it leaves the recycle bin on your desktop.
3.3.2009 1:09pm
bud (mail):
I view the controlling fact here as not "170 miles", but "two days". A routine border search should not require you to stay at the border for 2 days, so how can a search that removes your laptop from your posession for multiple days be viewed so benignly?

Maybe I'm just a serious geek, but I use my laptop multiple times a day for both personal reasons (my calendar, for one) and business (I have programs and data on there that I deem essential to my job performance.

Where is the line between inconvenience, and disruption?
3.3.2009 1:11pm
Crunchy Frog:

A "01101111011011100110010100100000011011110110011001100110" copy of a hard drive is not a difficult task, and perhaps it should be required as an inventory of the computer before it is shipped off for analysis. In fact I dont see the need of the government to have the computer at all.

That's like taking a sample of say, a shipment of oranges, for testing and letting the rest pass through, instead of quarantining the whole lot. By the time you find out that there's bad "stuff" there, it's already inside the country, and possibly already distributed to the public at large.
3.3.2009 1:32pm
David Schwartz (mail):
I think this search was simply unreasonable. To delay a border search for two days, based on nothing at all, is simply unreasonable.
3.3.2009 1:44pm
BobDoyle (mail):
elscorcho: I'm a computer analyst and deal in logic and progamming, so I rarely understand the law.

elscorcho wins the thread!
3.3.2009 2:20pm
BobDoyle (mail):
How much wood could a woodchuck chuck if a woodchuck could chuck wood?

I always thought is was

How much wood Would a woodchuck chuck if a woodchuck Would chuck wood?
3.3.2009 2:26pm
methodact:
This vicious circle is a product of compound error. The US Supreme Court betrayed the First Amendmend, their and our country and their solemn oath and duty, by not observing First Amendment protections for CP. This ancillary nonsense springs from that, a ripple effect, a domino effect, a chain reaction, an events cascade. Other totalitarian regimes have persecuted those caught with Bibles or other unorthodox texts or works or tracts. The US Supreme Court has probably in fact ultimately killed this country by their many bad decisions that prohibit CP.

Our judges tend to be overwhelmingly selected these days for their get-government-out-of-the-boardroom and into-the-bedroom track records. The judges that most vitiate antitrust cases are stacked on the bench.

Just observe the chaos now as the country collapses all around, and all the while the pols loot and steal $trillions for sweetheart deals, money that the kids cannot repay. How can anyone possibly think that it is merely coincidence?
3.3.2009 2:42pm
whit:

If you view something "obscene" while in another country and "delete it" before coming back, why should you be held to answer for it, when for most lay persons it is considered gone forever once it leaves the recycle bin on your desktop.


that's actually a really interesting question.

let's say you are in a country where you download child porn on to your computer, and that same porn is not illegal THERE (nor would the US have jurisdiction if it was). then, before returning to the country, you "erase" the files. in actuality, all you have done is erase the POINTER to the data of the files, of course. unless you "wipe/purge" the files are still there.

you cross the border, they search your computer and find the deleted but still present files. heck, let's say you even wrote over PART of some of the files,since once you delete that space goes to unallocated.

iow, suggesting strongly you had no intent to retain those files and UNdelete them later?

would you be criminally liable? you were IN POSSESSION in the sense the data was still on your laptop, but you made efforts to remove it, and unless computer geeky, probably really did think it was totally gone.

is there an affirmative burden on you to wipe/purge before you enter the country, so there are not even any illegal file FRAGMENTS?
3.3.2009 2:42pm
Soronel Haetir (mail):

is there an affirmative burden on you to wipe/purge before you enter the country, so there are not even any illegal file FRAGMENTS?



This is basically the question I tried to ask near the beginning and still haven't seen a real answer to.

I guess something else I would add. In the case that allowed disassembly of a car in order to find drugs, was there a suspicion requirement? If a search of that sort doesn't require any suspicion then I would have to think the instant laptop search would be lawfull, however if the car disassembly required suspicion looking at deleted data should have similar requirements. And that still doesn't answer the jurisdictional question. Maybe they couldn't charge possession of CP, but instead foreign travel in furtherance or some such, similar to the prostitution charges in that arena.
3.3.2009 3:04pm
Working Man:
That's like taking a sample of say, a shipment of oranges, for testing and letting the rest pass through, instead of quarantining the whole lot. By the time you find out that there's bad "stuff" there, it's already inside the country, and possibly already distributed to the public at large.


Unfortunatley this is a case where your comparison is, pardon the pun, apples to oranges. The only way to prevent the spread of "bad" data into the United States would be to seal off the borders, and seal off the internet.

Unlike bad oranges, I can break "bad" data into small pieces that alone do not constitute anything bad, and reassemble it later, back into the "bad" data. Attempting to stop the transfer of data across the borders without stopping it across the internet is a lot like trying to stop illegal immigration at the border crossings without attempting to stop it at other places along the border.

The policy cant logically be to stop digital copies of child porn from entering the country. The intent seems to be, to prosecute those who bring child porn into the country and any correlation that has to actually lowering the spread of "bad" data within the U.S. can only be considered nominal at best.

If "porn mules" were the only way to get it in the united states, then arresting them would in fact lower the spread of that bad data.
3.3.2009 3:11pm
Sean O'Hara (mail) (www):

Can someone who travels to the Netherlands be prosecuted upon return for drug transactions even though the only trace left is in their blood, possession through consumption?


Yes. The government doesn't normally bother with something so petty, but they do go after the Far Eastern sex-tourism trade:


The United States has risen to take legislative action against the growing evils of child sex tourism. In 1994, Congress established 18 U.S.C. § 2423(b), which is aimed towards prosecution of child sex tourists. Section 2423(b) criminalizes traveling abroad for the purpose of engaging in illegal sexual activity with a minor. Currently, successful prosecution under § 2423(b) requires the government to prove that an alleged child sex tourist from the United States formed the intent to engage in sexual activity with a child prior to meeting the child and initiating sexual contact. In other words, a defendant is only punishable under § 2423(b) if he has the intent, while traveling, to engage in sexual activity with minors. The federal government has successfully utilized § 2423(b) to target several child sex tourists. Current proposals to eliminate the intent requirement may broaden the government's prosecutorial power by allowing the government to prosecute United States citizens who engage in sexual acts with children while abroad, regardless of when they formed the intent to do so.

SOURCE: http://www.usdoj.gov/criminal/ceos/sextour.html
3.3.2009 3:28pm
whit:

Yes. The government doesn't normally bother with something so petty


your post doesn't support your assertion. the child sex tourism statute does not apply to drug crimes, whether "petty" or not. is there a statute that does (to drug crimes committed outside our jurisdiction, that can be prosecuted once returned)? you don't cite one to support your assertion

fwiw, the sex tourism law is weird. here's why.

in canada, sex with a 14 yr old is legal (that's the age of consent)

in WA it's 16 (14 and 15 are legal if you are within so many months of the age of the other person).

it is thus legal to have sex with a 16 yr old in WA state.

it is legal to cross into canada and MEET a 14 yr old and then have sex (no intent prior to crossing the border), but apparently ILLEGAL to cross the border with the intent of having sex with a 17 yr old even though they are 3 yrs over the age of consent in canada, and 1 yr over the age of consent in WA (the state you left).

it makes no sense, whatsoever, assuming "minor" in the above statute refers to under 18 as it usually does.


iow, you can't have sex with a 16 yr old in canada, if you form the intent to do so before crossing the border, even though the actual ACT is legal in both WA state and Canada.
3.3.2009 5:24pm
CLS (mail) (www):
Anyone reading this should keep a few points in mind:

1. If you are reading this it means you have access to the internet via a computer under your control.

2. If your computer is attached to the internet the chances are that you can not be 100% sure their is nothing considered "child porn" on the hard drive. You need not download it intentionally for it to exist.

3. Anyone who uses the net is open to legal prosecution because the government doesn't understand how it is possible for images to be on a computer without the owner putting them there intentionally.
3.3.2009 7:43pm
Visitor Again:
What if I have the photocopied pages of a Harry Potter novel in my luggage as I'm clearing customs? That's not obscenity or illegal advocacy but still illegal and subject to seizure at the border.

The statute I have in mind, 19 USC 1305, bars importation of obscenity, certain advocacy of lawlessness and lottery tickets. Where is the statutory authority for barring importation of photographic copies of books presumably because they violate copyright laws? And how much reading does it take to determine that a pile of private papers is not a copyrighted work? As things stand, Customs officials may read everything even though they're on a wild goose chase for obscenity, advocacy meeting the Brandenburg standard, or, according to you, copyright violations.

By the way, Section 1305 provides in part:

"That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes."

Who recognizes merit and what standards are used? This is a vague law if ever there was one.
3.3.2009 7:44pm
Adrian Monza:
Speaking of the border exception - would that also apply to telecommunications traffic? After all, the physical bits, are transiting the border just the same as the oranges referenced in the example above, or the laptop in the instant case. All of them are physically transiting the border, which allows the search under the border exception.

Does it make a difference that in the case of telecommunications traffic that it transits a wire in an purely ethereal, electronic format, versus being reduced to electronic bits on a physical medium (i.e. a hard drive)?
3.3.2009 9:19pm
David Schwartz (mail):
I've seen cases that have gone both way as far as what constitutes possession. There was one very interesting case where a person had child pornography in their cache. The court held that they did not "possess" at is the cached copy was incidental to merely viewing it.

Congress could outlaw viewing child pornography if they wanted to, but have only banned possessing it. The court specifically held that if you save a copy to a file, you are taking possession. But otherwise, it's simply viewing.

I think this case conflicts with what most other courts have held, but it strikes me as eminently reasonable. You shouldn't commit a crime just by viewing an image that it is illegal to possess, especially since this doesn't require you to have taken any affirmative steps intended to view it.
3.4.2009 1:30am
OrinKerr:
CLS writes:
Anyone who uses the net is open to legal prosecution because the government doesn't understand how it is possible for images to be on a computer without the owner putting them there intentionally.
CLS, did you ask "the government" this? If so, what did "the government" say? If not, where are you getting your sense of what "the government" understands?
3.4.2009 3:21pm
whit:

CLS, did you ask "the government" this? If so, what did "the government" say? If not, where are you getting your sense of what "the government" understands?



i'm the government and i'm here to help.

CLS, we DO understand. really. we also feel your pain.
3.4.2009 4:42pm
xyzzy:
[W]here are you getting your sense of what "the government" understands?


Julie Amero.

 

 

(Naturally, I'm not responding for CRS, but merely responding with one well-known case.)
3.4.2009 9:24pm
PScud (mail):
Well, courts have held that even if something has been taken from the border, it may still be at that interesting Functional Equivilant of the border. U.S. v. Caminos, 770 F2d 361, 365 (3d Cir. 1985) (“requiring that all imported packages be searched at their first point of entry, even where immediately forwarded under Customs bond to their final destination, would place unreasonable demands upon Customs officials”).U.S. v. Gaviria, 805 F.2d 1108, 1110 (2d Cir. 1986).
3.5.2009 7:39am
Rich Rostrom (mail):
Orin: "I'm curious, do you have any cases to support that? If you were briefing this for the government, what cases would you cite?"

IANAL. Not at all. It just seems dead-bang obvious to me that seizure at the border is dependent on border control authority, and that moving a seized object away from the border doesn't contradict that authority. There are border locations where maintaining custody of an object (or person) would be impractical or impossible. Thus moving something away from the point of seizure cannot be prohibited, or effective border control would be impossible.

Restriction to "reasonable" movement of the seized item makes sense, but "reasonable" ought to be construed to allow effective border control, without excessive intrusion on the use of the item. Time, not distance, is the controlling factor.
3.6.2009 1:00am
KraitAZ (mail):
How should attorney-client privileged information be treated at a border? It seems to me that there is a relatively low suspicion threshold to be hurdled before being selected for secondary inspection.

What if a lawyer had criminal clients? Can privileged information be "shared" to other government agencies? The prosecuting agency?

How is Arizona Ethical Rule 1.6(d)(5) reconciled with the border search doctrine?

ER 1.6. Confidentiality of Information
(d) A lawyer may reveal such information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(5) to comply with other law or a final order of a court or tribunal of competent jurisdiction directing the lawyer to disclose such information.

Is an exception a law? Are judicial decisions related to specific facts considered a "final order" that create general policy at the border applicable in all situations?

Zippy: Congress is looking at the issue.

H.R. 6869 -- Border Security Search Accountability Act of 2008

S. 3612 -- Travelers' Privacy Protection Act of 2008

I've posed a lot of questions; my thoughts below.

The government has a compelling interest in protecting its citizens, especially from harm coming over the international border. However, I don't believe that attorney client privilege should be trumped by the border search doctrine unless there is some heightened suspicion, maybe even probable cause. Average travelers don't face career threatening sanctions for disclosing data on their computers. I don't think 1.6(d)(5) allows an AZ lawyer to to divulge privileged information without client approval under the border search exception. (I'm a law student, but haven't taken an ethics course yet, so I could be wrong about this).
3.6.2009 1:09pm

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