For the last week or so, I’ve been bombarded with complaints from friends and fellow travelers about how they believe that now they will be a target of the (say it with me now in a menacing voice) the evil Bush administration and have their gadgets seized while they return from a trip abroad.
These concerned travelers seem to believe that while in line at passport control, they will be tackled and have their family photos seized for months. I’ve heard multiple people decry that our “civil liberties” are being infringed upon. They are using emotional, not logical rhetoric, to think this one out.
So here comes a dissenting and unpopular view: I don’t care about this recent change in policy because it’s just a clarification of existing the Border search exemption. So take a deep breath and read on.
The Fourth Amendment prevents unreasonable search and seizure, but still pursuant to probable cause. There are, of course, a few exemptions to this (exigent circumstances, for instance). The Fourth Amendment does not specifically mention border searches, but over the years these searches have been permitted under various federal statutes and affirmed under appellate decisions. However, the Fourth Amendment does mention the word “unreasonable,” and that’s been the subject of legal dispute for many years.
Customs and Border Patrol operates under “routine” and “non-routine” searches — they don’t need cause to search my luggage. They do, however, need cause or “reasonable suspicion,” as defined in US vs de Hernandez (473 US 541 (1985)), which says that they need a “particularized and objective basis for suspecting the particular person.” So CBP needs reason to do physical searches on your person and won’t just start “coppin’ a feel” at random.
Since CBP can search closed containers at will, it’s logical that in the 20 years after the de Hernandez decision that it would extend to electronic materials/devices. The US Government’s argument is that electronic devices are functional equivalents of physical containers (my address book on my Blackberry, for instance, is the functional equivalent of a paper address book).
Customs has the legal permission to search all mail and packages entering the US (US v Ramsey, 431 US 606 (1977)), so you could make the argument that email is an extension of physical mail. As Steve Surjaputra already mentioned, this case was decided by The 9th Circuit US Court of Appeals, which has a reputation for having a “liberal bias.” The court reversed the lower District Court’s decision in US vs Arnold (2008.)
Michael Arnold, the defendant in the case, during the course of a CBP search at LAX, was found to have child pornography on his laptop in folders on his desktop. His attorneys argued that the lower court was correct in finding that CBP didn’t meet the burden of “reasonable suspicion” as mentioned above, so they should suppress what they found on his desktop. Arnold’s attorneys also argued that the First Amendment applied, since you need a higher level of suspicion for searching “expressive material”. The District Court agreed with Arnold, but upon appeal, the 9th Circuit overturned their ruling. The First Amendment argument didn’t work because due to existing case law in US vs Ickes (393 F. 3d 501 (4th Circuit 2005)), The 9th Circuit followed precedence, and rejected Arnold’s argument on both counts.
The Arnold decision led to where we are today: DHS does have the legal right to seize electronic devices at border entry points. But just because they have the right doesn’t mean we should start panicking. As a somewhat frequent border crosser (about once a month), I’m not worried. I’m not bringing any contraband back into the US or breaking the law, so even if ICE does go through my laptop, they’ll be terribly bored in what they’ll find.
But this doesn’t mean that I have my entire life on my laptop for someone to snoop around. As I mentioned in an earlier column, you should be practicing safe computing. Security expert Bruce Schneier has a few good ideas, like keeping minimal information on your laptop. Think of this as risk mitigation: Your personal data is often more important than the physical asset, so reduce your personal data on your laptop. This way, if your device does get stolen (more likely) or confiscated (less likely), you’re more upset about the device being lost.
Let’s all be calm, take a deep breath, and understand what this ruling really means and the context for which it applies. It’s easy to get caught up in emotional debate and repeat sound bites and ignore the law.
(Note: I am not a lawyer, but I do enjoy watching Mariska Hargitay on Law and Order: SVU)
{ 7 comments… read them below or add one }
Hargitay is not a lawyer either, she plays a cop.
If an LEO wants to search they’ll just claim you acting furtively, what ever that means. Bingo, probable cause. If an officer wants to search you, decline. If they press it, then the burden shifts to them. Not that its much a burden, but it does add some hoops. It’ll anger them too, which means the search will be more intense than necessary simply because you invoked your rights.
So much for the oath to uphold the Constitution which they take. But thats life.
The problem isn’t so much that they have the right to inspect your laptop, iPod, camera, or anything else, or that courts have held that citizens and non-citizens alike have effectively no rights whatsoever when they’re undergoing Customs inspection. That’s nothing new at all.
The problem is that the government is asserting the right to seize your laptop, camera, or anything else and keep it indefinitely, for any reason or for no reason at all. And then they can fish through it at their leisure for any possible violation, including copyright. Can you prove that every file on your laptop or iPod is legally obtained and used in strictly accordance with the EULA? If you can’t (and presumably the burden is on you), you’re liable to whatever charges and penalties the prosecutor feels like asserting that day, possibly motivated by political needs.
In effect, the policy is not only an arbitrary taking of your property (the policy doesn’t even mention returning anything), but the power to arbitrarily harass people with civil or criminal charges after an open-ended fishing expedition. While the government has a legitimate obligation to protect the borders, this authority to arbitrarily seize property goes beyond any legitimate security need. It violates the core values and principles that have defined the United States, but provides no apparent benefit.
If such a broad authority is genuinely necessary, it should be the result of a Congressional authorization after public debate rather than a secret fiat from the Executive Branch.
Hapgood, now now, you know that the security is merely there for your own good. The protection of everyone is designed to protect us all. [huh? what did he just say?] Survey after survey shows people just want to ‘feel safe.’ So, we want you to feel safe too.
Only guilty people need the protection of rights, everyone knows that. Why, you must be guilty of something to not want to allow the good public servants to rifle through your property. You know they cannot tell you the reasons why they are doing it; the ‘bad guys’ might find out and find a way to game the system! Why, all the rules are top secret, because someone might discover that Barney Fife or the guys on Car 54 said the same thing fifty years ago. Can’t have that you know.
Now we’ve gone and done it, we’re on the DNF list, the security risk list, why, anyone who has taken an oath to defend the Constitution is now a risk to DHS . . .
I did not appreciate the snarky, dismissive, and sarcastic tone of this article. This is a real issue of serious concern, and if Mr. Hawkins wants me to read his pieces he should not slant his work as if they were over-the-transom submissions to FoxNews.
It doesn’t matter that Mr. Hawkins doesn’t feel personally impacted by the legal implications mentioned here. Many people are impacted, and they are not helped by his tone here. In the end, semantically, he offered very little if anything of import to the subject.
They say a liberal is a conservative who got arrested unjustly. One day he will be impacted, and he won’t get support or even any sympathy from the people at which he cracks wise.
Personally, I doubt I’ll ever read any of Mr. Hawkins’ work in the future. I take travel a lot more seriously than he thinks I do and I’m not part of his target demographic.
Thanks for the constructive criticism Skip! Keep up the good work!
Hapgood has really good points. Any clarification of the DHS policy for seizing and returning electronic devices needs to have a legal framework around it otherwise it’s going to be construed as a rampant abuse of power. I’d like to see Congress start drafting laws around this and start laying down groundwork as what’s an acceptable time for returning seized items, etc.
For the record, I don’t watch Fox News. I’m a CNN/Chicago Tribune/NY Times reader, preferring print to television.
@Nick: Any clarification of the DHS policy for seizing and returning electronic devices needs to have a legal framework around it otherwise it’s going to be construed as a rampant abuse of power.
Anyone who actually reads the released policy will quickly construe it as a license for rampant abuse by many levels of government. While the policy includes provisions that provide the appearance of protections and checks, they’re so vague that they’re nothing more than window dressing. There’s no definition of what a “reasonable time” is, and it looks like a seized item can be passed around to different agencies to execute their own agendas in a process that can take an indefinite period. For that matter, there’s no requirement to return the item and its data in complete and working condition, if they do return it at all.
There’s also a provision for some sort of review and audit, but it doesn’t say anything about the reviewer being independent or the audit results getting released to the public. Given the track record of the DHS and the Bush administration, any such audits are likely to be conducted by loyal DHS personnel and the results classified for “national security reasons.” (We’ll just have to accept on faith their official statements that “audits show full compliance with procedures and no abuses.”) Any protections or checks and balances in the policy are purely cosmetic, and serve only to help the administration neutralize or vilify critics.
The specific inclusion of “copyright” in the list of possible violations the seizures can investgate (right alongside terrorism and child pornography) is particularly frightening. As I noted earlier, unless you can prove that every file on an iPod or laptop is legitimate and in compliance with the copyright owner’s licensing agreement you’re open to whatever trouble the prosecutor feels like. It provides an unlimited supply of “low hanging fruit” for any prosecutor or official who wants to toady up to the RIAA or the MPAA.
You may not have been concerned about this when you wrote your article, but I hope you’re now beginning to realize what this policy really represents. It’s just the latest power grab from an adminsitration that has already granted itself the power to ignore or modify laws passed by Congress through “signing statements,” wiretap anyone it wants whenever it wants, to declare anyone it wants an “enemy combatant” and spirit them away forever to a legal black hole, and to start wars on false pretenses. We’ve allowed ourselves to be terrorized into accepting all of that as part of a vaguely-defined permanent “Global War On Terror” (which includes the TSA’s completely idiotic War on Liquids, Toiletries and Shoes continually fought at airports).
And now they want the power to arbitrarily seize electronics at the border, keep them indefinitely, and tear them apart looking for whatever pretense they can find to prosecute whoever they want if that happens to suit their current needs. I think it’s time to stop allowing the administration to destroy the very foundations of our society in the name of pretending to protect us.