Federal court upholds border search of laptop in Texas

[Newsjock]

Source: Computerworld

The U.S. District Court for the Southern District of Texas has become the latest federal court to uphold the right of U.S. customs agents to conduct warrantless searches of laptop computers at U.S. borders.

In a ruling last week, the court denied a motion to suppress evidence gathered from a border search that was filed by a man who is accused of possessing, transporting and distributing child pornography.

... The government maintained that the search stemmed from an ongoing investigation of Verma for child pornography. Well before Verma was searched at the airport, the FBI had already linked his home IP address to an Internet Relay Chat server containing images of child pornography. Prosecutors said the airport search of Verma's computers stemmed from that investigation and from the fact that he was reentering the U.S. from a country that the U.S. considers to be at "high-risk' for child pornography.

In response to Verma's motion, U.S. District Court Judge Gary Miller ruled that the searches were constitutional with or even without reasonable cause or suspicion.


Read more: http://www.computerworld.com/s/article/9175403/Federal_court_upholds_border_search_of_laptop_in_Texas?taxonomyId=84&pageNumber=1

[ixion]

1. Score another win for fascism

:(

[paulsby]

5. border searches w.o cause have been legal for scores of years

the question was did a search of laptop's hard disk etc. remain w.in the scope requirements of such a search

[ixion]

7. Yeah, since the Days of Ray-Gun and the so-called 'war' on drugs

which was a spring board for eating away at civil liberties.

[paulsby]

8. wrong on the facts

the border search exception is over 100 yrs old

nice rhetoric though

[ixion]

9. I see... so you're saying that Reagan didn't erode civil liberties?

warrantless searches were far less common prior to the WoD. I'm not disputing that there have been border searches, but the laws have deteriorated considerably since the 80's. Do you dispute that?

[paulsby]

10. what i am saying is this

the point i am making is that BORDER SEARCHES WITHOUT WARRANT pursuant to the "border exception" are over 100 yrs old

THESE particular warrantless searches were done LOoooooong before reagan and since reagan

reagan has NOTHING to do with the border search exception, nor do clinton, carter, ford, etc.

this particular case has to do with "scope". warrantless border searches are limited in scope absent reasonable suspicion. the issue in the instant case is how the scope issue fits with the search of a hard drive. is it like opening a book, a locked container, etc?

hth

both the war on drugs and the war on domestic violence, not to mention the war on terror have all resulted in bad law and erosion of rights. i agree with you there.

[No Elephants]

11. I'm guessing border searches go back to cave dwellers, not only 100 years. Do you mean a

SCOTUS case held that warrantless border searches were Constitutional 100 years ago? If not, what do you mean?

[paulsby]

13. i mean that yes, according to scotus

border searches are presumptively reasonable under the 4th, and that the case law goes back on this over 100 yrs

[No Elephants]

If you have a 100 year old SCOTUS case name, please post it. If not,, I call bs.

[joeglow3]

25. Short search yielded this

Apparently, it was address by the first Congress in the Act of July 31, 1789. I also found where it was address in Carroll v. United States in 1925. Thus, I see no reason to doubt the claim.

[paulsby]

27. thanks for having my back

i have no problem with people criticizing policy. but failing to realize that border searches have been presumptively reasonable for over 100 yrs LONG before reagan and the war on drugs, etc. is just... well... ignorant

[joeglow3]

28. No problem

Sadly, these people who post these rude, confrontational posts tend to run away after seeing the error in the attitude.

[Ter]

30. Yep, never any apology or

"I was wrong."

[anigbrowl]

26. the 5th Act of the first Congress established the Customs Service on July 31 1789

..the same Congress which ratified the bill of rights a few months later.

see also US v Ramsey, 431 U.S. 606, 616, 619 (1977) - http://supreme.justia.com/us/431/606/case.html#616 which in turn cites Boyd V. US (1886), both of which draw upon this statute as well as the constitutional power of the United States to regulate its own borders.

[No Elephants]

19. Self Delete-Dupe.

[sui generis]

2. See the problem I have with it is that there is NO reason whatsoever

they couldn't have used due process and probable cause to obtain a warrant, given that they were already investigating him and had made a link.

The creepy part is yes he's likely a perv and dangerous to children, BUT there was no reason to circumvent our existing laws to catch him.

[anigbrowl]

14. The law was not circumvented

Border searches without warrant have been accepted since boyd v. United states in 1886, and arguably even as far back as the contraband statute passed by the first Congress in 1789. Every nation on earth asserts the right to police its own borders for contraband.

[sui generis]

23. the point being that it was a misuse of that authority

And quite frankly if a border agent attempts to completely confiscate my laptop without probable cause, I will go jail and that border agent will go to the hospital. Of course cursory search and power check, even viewing program files - I don't care about, but seizing my property just because the law says you can isn't going to happen unless there's more than just the law to justify it.

If they had probable cause, they should have used it instead of dicking around with border patrol

[anigbrowl]

24. you seem to be equating the search with the seizure

The fact is that the contents of a laptop are subject to inspection at the border, and the material found was more than adequate to justify seizure and detention of the guy in question.

I'm not thrilled about the freedom the border patrol has in this respect, but they were acting perfectly legally as far as I can tell.

[Book Lover]

3. Constitutional? Yeah, Jefferson would have been down with it *no problem *

:sarcasm:

[anigbrowl]

15. Chances are that he would have, in fact

Jefferson is not thought of as being over-fond of Federal power, but he was an enthusiastic supporter of the United States' right to police its own borders and of raising revenue by the imposition of customs duties (which he hoped would obviate the need for the federal government to levy too many taxes within the states).

One example of his approach can be seen in the embargo Act of 1807 and subsequent modifications, in which (to avoid the US getting drawn into the Napoleonic wars) he imposed heavy restrictions on all traffic into or out of US ports. A supplement added the following year allowed warrantless searches and seizures and significant fines - a minor inaccuracy in the wiki link below says that fines of up to $10,000 could be levied; in fact the government claimed the right to levy fines up to the sum of $1 million...a lot of money today, but a staggering sum in 1808.

http://en.wikipedia.org/wiki/Embargo_Act_of_1807

Certainly, these restrictions were aimed at business rather than individuals. However, there is no evidence that Jefferson intended that the 4th amendment should inhibit the behavior of customs agents, who were presumed to have powers of boarding and inspection by right as far back as 1789 (by statute of the first congress) and on a common-law basis prior to that, reaching back to the 16th century.

[XemaSab]

4. Not cool

Texas is the only state where they looked in my trunk... 30 miles north of the border! :o

I wanted to say no, but I decided 11 pm halfway across the country wasn't the best place to take a stand for civil liberties. :(

[paulsby]

6. they do it in WA state too

caused some controversy

[Thothmes]

31. Did it in California

About 40 miles North of San Diego,near Camp Pendelton Marine Base on I-5. The immigration inspection station there used to routinely look in car trunks. That was some years back, don't know if they still do.

[No Elephants]

12. More change.

Bush admin: http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy

Obama admin: http://www.hhdataprotection.com/2009/09/articles/government-search-seizure/dhs-issues-new-directives-regarding-warrantless-border-searches-of-electronic-devices/

[boppers]

18. Why stop there?

This was arguably part of the Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, HW Bush, Clinton, W Bush, and now Obama administrations. Probably going back further, when we started spying on telegraphs....

Mail, phones, papers, boxes, *anything* crossing the borders, or perceived as a threat, and this has been SOP off and on since at least 1952:
http://en.wikipedia.org/wiki/HTLINGUAL

[No Elephants]

20. Sorry, "arguably" isn't authoritative. Nor does your "SOP" source support your claim.

Not in the context of this thread, anyway.

Anyone can edit wiki. So, while wiki is useful for some purposes, it is not an expecially reliable source on controversial subjects--and wiki itself characterizes that very brief blurb to which you linked as a "stub." However, let's assume the statements in the stub are reliable and self-contained. They still do nothing to support your claim.

The Fourth Amendment does not prohibit all searches, only unreasonable searches, and only where there is a reasonable expectation of privacy. Your source says nothing about the presence or absence of probably cause, or of warrants or of reasonable expectations of privacy. It says only that, between 1952 and 1973, the CIA copied down names off the envelopes of mail going to Red China and the Soviet Union, both then considered enemies of America, then later opened and read the mail as well.

Looking at names on envelopes is not a fourth amendment violation as you have zero expectation of privacy for a return address you put on the outside of an envelope. Indeed, the whole point of putting it there is so a government employee will see it. (No privatization then.) And, even as to opening the mail, the wiki stub makes no mention of warrants or probable cause or the Fourth Amendment, one way or another.

Nor does it say, one way or the other, that Congress or any President sitting during that time knew about the mail opening, let alone established it as official government policy. And, CIA agents dealing with mail going to an enemy of the U.S. are very different from border agents dealing with allies of the U.S., anyway.

Even if your source did support your point, though, the fact that government does something--even as SOP and even for a long time--does not automatically mean that what government is doing is Constitutional. If that were so, we wouldn't ever have needed the Bill of Rights.

(BTW I wonder why the program described in the stub was stopped in 1973? After all, the Cold War hadn't stopped by then. However, people were talking about oversight by then.)

So, in answer to your question, all the above reasons are why I stopped at Obama and Bush when it came to a thread about a court case involving the Fourth amendment and searching the contents of compuers at the border, instead of also addressing a stub wiki on what the CIA did with mail going between the U.S. and China and the Soviet Union between 1952 and 1973.

[boppers]

22. I didn't intend to get into a protracted legal debate, or shovel sources.

If you want, I can shovel. I'd rather talk.

Without getting too technical, email snooping is highly analogous to paper email snooping, with additional features.

They can look at the "envelope".
They can look at the source location (by mailbox/machine), and destination.
If those raise any reasons for suspicion, they can justify deeper inspecting inside the envelope.

So, how does this map over to a laptop? A laptop computer is basically an electronic suitcase full of files.
When they see a laptop, or suitcase, coming from, or going to, a suspect location, that can raise a reason for suspicion. They can then justify looking inside.

How does this map over to an email message board? An email is basically an electronic file. When they see a email, or file, coming from, or going to, a suspect location, that can raise a reason for suspicion. They can then justify looking inside.

Same as it has been for over 50 years now. What change has happened? This isn't a secret, a "gotcha", anymore. It's known, it's public, and we're talking about it. We have more means to communicate, and we have resulting means of inspection, and detection.

You shouldn't transit a suitcase, or laptop, or email, full of porn, nuclear secrets, or an attack payload, into, or out of the US.

I suppose what annoys me is the new crop of "libertarians" who want cause for inspection to be so high that "BOMB" would have to be clearly labelled on the email/suitcase/package, and then complain that their rights inside the US... are being violated outside of the United States... or upon entry.

[ManiacJoe]

16. Back in the day,

didn't the search need to be vaguely related to customs or immigration to be legal without a warrant?

[boppers]

17. Importing illegal child porn would be a customs issue, no?

...and no, it didn't have to be vaguely related. When you enter, or leave, a national boundary, you don't have the same protections.

[No Elephants]

21. Thing is, the prosecution in this case DID cite probable cause for a search.

According to the article, the defense claimed the suspect had been stopped and search without any reason.

"The government maintained that the search stemmed from an ongoing investigation of Verma for child pornography. Well before Verma was searched at the airport, the FBI had already linked his home IP address to an Internet Relay Chat server containing images of child pornography. Prosecutors said the airport search of Verma's computers stemmed from that investigation and from the fact that he was reentering the U.S. from a country that the U.S. considers to be at "high-risk' for child pornography."



They had already associated the man with child porn internet sites AND he was returning from a country that is "high risk" for child porn.

Now, you could, I suppose argue that every country is high risk for child porn. But, the fact remains that law enforcement thought it had probable cause to stop AND search.

Moreover, if you are carrying your computer with you while traveling, and the files are not protected in any way, how much of an expectation of privacy do you really have? For example, did he carry his laptop with him when he went to the john on the plane? Was his computer in a locked case?

I don't think we even have to get into special legal standards for border searches. You probably could have decided this case under garden variety Fourth Amendment law and found for law enforcement.

However, since law enforcement had been investigating him AND had already connected him with a child porn website, why in hell did they not just get a warrant, even before they knew he was leaving the country?

[Commie Pinko Dirtbag]

29. Four words: Linux, home partition encryption. -nt