CASE CLOSED … what really happened in the 2001 anthrax attacks?

* Another arrogant government assertion of its right to do whatever it damn well pleases, not unlike the FBI’s unsupported accusations and subsequent stonewalling behavior in the anthrax case. National security is very important, but so are the rights of American citizens, including David House and Bruce Ivins.

Posted by Lew Weinstein on May 23, 2011

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David House & Bruce Ivins

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Carol Rose, Executive Director of the ACLU of Massachusetts, writes (5/13/11) …

read the entire article at … http://www.aclu.org/blog/author/Carol-Rose%2C-Executive-Director%2C-ACLU-of-Massachusetts

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LMW COMMENT …

Another arrogant government assertion of its right to do whatever it damn well pleases, not unlike the FBI’s unsupported accusations and subsequent stonewalling behavior in the anthrax case. National security is very important, but so are the rights of American citizens, including David House and Bruce Ivins.

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27 Responses to “* Another arrogant government assertion of its right to do whatever it damn well pleases, not unlike the FBI’s unsupported accusations and subsequent stonewalling behavior in the anthrax case. National security is very important, but so are the rights of American citizens, including David House and Bruce Ivins.”

  1. Zicon said

    This is just an example that is proof that the GOV. is abusing it’s powers and is wastefull of our tax dollars…

    Here is another example of the US government making rules as they go along… And It is now guilty until proven Innocent? What a CROCK of S**T…. And here a famous person is getting the end of the US governments ugly stick… If that doesn’t make one mad, then wow… So here is a link to the video that was sent to me via Redstate Political personel via the Heritage Foundation on Bobby Unser! So the US Gov. trys their best and bragging about it to fine him $5,000.00 and up to 6 months in prison and Judge told Unser that he was going to have to prove his (Unsers) Innocense.. So now they are at the Supreme Court and cost the tax payers close to over a million dollars.. WTF.. OBAMA!!!!

    YT Link#

    And WTH is the criminals in this case??? “Certainly NOT Unser”

  2. Zicon said

    Funny the word “sovereigns” is brought up.. Or better known as the “SCM” Sov. Citizens Movement.. I twited the “SCM” on the 16th of this month just making a statement based on what I’d recieved. I found a lot of interesting things with the “SCM” To me it appears more and more people are taking the laws and twisting governments own words for interpretation since almost anything is open for interpretation and making it work for them and their cause… Still have much to read though… To me every government has made up rules and regulations to work for them on the spur of moments and have things hidden deep in bills that go through the house, and other commitees and thousands of pages of mostly useless wording that is written with every loophole to be covered for the benifit of that which is in power.. I’m betting no politician has sit and read every single word on every piece of paper that comes across their desk… They pay some intern to read and write a synopsis for them. so why not everyone else, when faced with a problem that where laws rules and regulations need to be looked at much deeper… Also on the laptop seizure if he was aware of what could happen, wth wasn’t he smart enough to mail it to where wher was going to be at? Doesn’t mattter what was on the computer legal or illegal.. If it were illegal then if no one but the owner knows what is on there and no one else how in the world can anyone assume what might me on there to be able to get a legal warrent not knowing whats there and whats not there. Or just fishing which seems to be method of choice of the FBI/DOJ… And that’s been said by ex FBI/CIA and even SS agents, that yes they do abuse there power about 40-50 % of the time… Which mostly applies to larger, classified, and more secretive cases with the higher ups in agencies

  3. DXer said

    So if it was seized at O’Hare, it appears that 7th Circuit precedent that applies, rather than 1st Circuit precedent.

    The Frontline episode last night quotes a reporter suggesting that there was an intermediary in the Boston area who may have acted as a go-between hooking Manning, who wanted to disclose a great mass of classified information, and Julian Assange. Mr. House was also interviewed. Given the Ninth Circuit precedent holding that there is no expectation of privacy that a laptop won’t be searched, and the grave national security interests raised by getting to the bottom of it, Mr. House should have expected his laptop to be searched. The search does not implicate the right of association. It raises the question of expectation of privacy under the Fourth Amendment at border crossings (to include airports). And that question is best ascertained by divining whether there is any District Court or Appellate Court precedent governing searches at the Chicago airport.

    Given that Julian Assange denies being the one purporting to be him in touch with Manning in advance of the uploading to the Wikileaks website, the implications for national security are very grave indeed. There seems to be a story yet untold.

    Laptop seizure at O’Hare, subject of ACLU lawsuit
    by Jennifer Brandel May. 13, 2011

    (Flickr/file)
    The American Civil Liberties Union has filed a federal lawsuit against the Department of Homeland Security in relation to a laptop seizure at O’Hare International Airport.

    • DXer said

      David House didn’t like the Frontline show.

      “This year I’ve been calm despite being stalked, surveilled, bribed, detained, & having my computer seized, car towed, and friends punished…. The first substantive anger I felt throughout these months arose tonight after watching the stridently propagandized @ frontlinepbs special….Indignation is the only orienting sense after gawking through the twisted pro-Washington hallucination called WikiSecrets.”

      Of course, he was surveilled. The FBI is investigating a huge national security breach. Duh.

      • DXer said

        So the issue is to be considered under the Fourth Amendment on a case-by-case basis.

        “CA9: Laptop seized at the border could be moved 170 miles for its border search

        A laptop seized at the border could be moved 170 miles away for a search under the Fourth Amendment. United States v. Cotterman, 2011 U.S. App. LEXIS 6483 (9th Cir. March 30, 2011):

        Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

        We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry—and not yet admitted or released from the sovereign’s control—to be transported to a secondary site for adequate inspection. The border search doctrine is not so rigid as to require the United States to equip every entry point—no matter how desolate or infrequently traveled—with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring within our borders or be otherwise precluded from exercising its right to protect our nation absent some heightened suspicion.

        Still, the line we draw stops far short of “anything goes” at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, we continue to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.”

        • DXer said

          While the general issue is a very interesting issue, the facts make for a horrible test case if the ACLU’s purpose was to develop a law protective of the privacy rights of the usual traveler.

          The Court in Cotterman explained:

          In this case, the initial search and seizure was justified by the Government’s broad sovereign authority to secure our borders, e.g., Montoya de Hernandez, 473 U.S. at 537 (ple- nary authority to conduct searches and seizures at the border), and Arnold has already clarified that the Government may search the contents of a computer at the border without partic ularized suspicion. 533 F.3d at 1008. We see no basis to distinguish this case from our prior jurisprudence simply because the complexity of Cotterman’s computer necessitated its relocation to a forensic computer laboratory to allow the Govern- ment to conduct an adequate search.18 Id. at 1006, 1008-10; Hill, 459 F.3d at 975; see Flores-Montano, 431 U.S. at 155-56. We further hold that the duration of the deprivation satisfied the common-sense standard established in Montoya de Hernandez, 473 U.S. at 542-44, and that continuing the search by transporting the property to the Tucson forensic lab- oratory could not therefore amount to an unreasonable consti- tutional deprivation. The district court erred in suppressing the evidence lawfully obtained under border search authority.

          To the extent that the dissent’s arguments to the contrary are not squarely foreclosed by Flores-Montano, 431 U.S. at 152, we point out that each was considered and rejected in Arnold. 533 F.3d at 1006, 1008-10 (“Arnold has failed to distinguish how the search of his laptop and its elec- tronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed. . . . [C]ase law does not support a finding that a search which occurs in an otherwise ordinary manner, is ‘particularly offensive’ simply due to the storage capacity of the object being searched.” (citing Califor- nia v. Acevedo, 500 U.S. 565, 576 (1991))).

          The dissenting opinion explained:

          B. Fletcher, Circuit Judge, dissenting:

          “I respectfully dissent. The “sticking point” of this case is not whether the Government’s authority “to subject incoming travelers to inspection for entry also permits the Government to transport property not yet cleared for entry away from the border to complete its search.” Maj. Op. at 4219-20. The real issue, as this case is framed by the government and the major- ity, is whether the Government has authority to seize an indi- vidual’s property in order to conduct an exhaustive search that takes days, weeks, or even months, with no reason to suspect that the property contains contraband.1 In other words, the problem with this case is not that the Government searched Cotterman’s computer in Tucson as opposed to Lukeville. The problem is that the Government seized Cotterman’s lap- top so it could conduct a computer forensic search, a time consuming and tremendously invasive process, without any particularized suspicion whatsoever.

          To the contrary, I would hold that officers must have some level of particularized suspicion in order to conduct a seizure and search like the one at issue here, because (1) seizing one’s personal property deprives the individual of his valid posses- sory interest in his property, and (2) authorizing a generalized computer forensic search (untethered to any particularized suspicion) permits the Government to engage in the type of generalized fishing expeditions that the Fourth Amendment is designed to prevent.
          The “touchstone” of our Fourth Amendment analysis, even at the border, must be reasonableness, but with recognition that the “Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior.” United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). “Balanced against the sovereign’s interests at the border are the Fourth Amendment rights of . . . . [the individual, who is] entitled to be free from unreasonable search and seizure.” Id. at 539.
          The Supreme Court has recognized that a traveler has a Fourth Amendment interest in maintaining possession of his personal property. In United States v. Place, 462 U.S. 696, 708 (1983), the Court explained that “detention of luggage within the traveler’s immediate possession . . . intrudes on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary.” Those interests exist, albeit with less force, at the border. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155 (2004).2 While a traveler cannot have a reasonable expectation that his property will not be searched at the border,3 I submit that a traveler does have a reasonable expectation that his property will not be searched in a manner that requires it to be taken away from him for weeks or months, unless there is some basis for the Government to believe that the property contains contraband. Cf. United States v. Thirty-Seven (37) Photo- graphs, 402 U.S. 363, 376 (1971) (A traveler’s “right to be let alone neither prevents the search of his luggage nor the sei- zure of unprotected, but illegal, materials when his possession of them is discovered during such a search”) (emphasis added).
          ____
          FN/
          As the majority acknowledges, United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) does not control. Op. at 4231. Though Arnold held that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border,” it did not involve the type of search and seizure at issue here. Id. at 1008. In Arnold, officials at the border examined the visible files on the computer and found child pornography. Id. at 1005. Notably, the officers did not seize the computer for an indefinite period until after they identified contraband, and they obtained a warrant before conducting an exhaustive forensic search of all the computer’s data. Id. (for example, browsing histories and records of deleted files in unallocated space). See United States v. Flyer, No. 08- 10580, Slip Op at 2419, 2429 (9th Cir. Feb. 8, 2011); United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc).
          ____
          Computers offer “windows into [our] lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad.” David K. Shipler, Can You Frisk a Hard Drive?, N.Y TIMES, Feb. 20, 2011, at WK5. The majority gives the Government a free pass to copy, review, categorize, and even read all of that information in the hope that it will find some evidence of any crime.

          An exceptionally invasive search of property can constitute a search conducted in a particularly offensive manner. See United States v. Ramsey, 431 U.S. 606, 618 n.13 (1977) (reserving the question of whether a search at the border con- ducted in a particularly offensive manner violates the Consti- tution); Kremen v. United States, 353 U.S. 346, 347 (1957) (holding unconstitutional a search where officers with a war- rant to arrest two individuals transported the entire contents of a home to San Francisco for an “exhaustive” search); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-58 (1931) (holding unconstitutional a search where officers with a war- rant to arrest individuals seized office papers, under threat of force, in order to conduct a “general exploratory search in the hope that evidence of a crime might be found”), abrogated on other grounds as discussed in Arizona v. Gant, 129 S. Ct. 1710, 1724 (2009).4 Given the exhaustive nature of computer forensic searches, I would hold that such searches are “con- ducted in a particularly offensive manner” unless they are guided by an officer’s reasonable suspicion that the computer contains evidence of a particular crime.

          ______

          The majority suggests that conducting a forensic search in a distant lab is faster than or equivalent to conducting a search at the border. Maj. Op. at 4232. That misses the point. A computer search in a forensic lab will always be equivalent to an identical search at the border. The duration of a computer search is not controlled by where the search is conducted. The duration of a computer search is controlled by what one is looking for and how one goes about searching for it. See Orin S. Kerr, Searches and Sei- zures in a Digital World, 119 HARV. L.REV. 531, 544 (2005) (“[A]nalysis of a computer hard drive takes as much time as the analyst has to give it.”).

          _______

        • DXer said

          Laptop Searches at the United States Borders and the Border Search Exception to the Fourth Amendment by Christine A. Coletta in the Boston College Law Review explained in 2007 a 2005 decision in the 4th Circuit.
          http://lawdigitalcommons.bc.edu/bclr/vol48/iss4/4

          Nude pictures of adult women plus an obsession with a child served as reasonable suspicion to search for evidence of pedophilia.

          “The Fourth Circuit Examines a Border Laptop Search Preceded by
          Reasonable Suspicion: United States v. Ickes
          In 2005, in United States v. Ickes, the U.S. Court of Appeals for the
          Fourth Circuit upheld a search of John Woodward Ickes, Jr., who had
          his laptop computer with him in his van as he drove across the Canadian
          and American border.”) Ickes told U.S. customs agents that he
          was returning from a vacation, which seemed unlikely to . the agents,
          considering that the van appeared to contain “almost everything
          [Ickes] owned:14i The agents commenced an inspection of Ickes’s van,
          and their suspicions were further raised when the cursory inspection
          revealed a video camera “containing a tape of a tennis match which
          focused excessively on a young ball boy.” 142 The agents proceeded to
          conduct a more thorough search, which uncovered marijuana seeds,
          marijuana pipes, a copy of a Virginia warrant for Ickes’s arrest,
          and child pornography in a photograph album.” 3 When the agents
          learned that Ickes was subject to two outstanding warrants, they placed
          Ickes under arrest, continued to search the van, and examined the contents
          of Ickes’s computer and seventy-five diskettes, which contained
          child pornography. 144 Ickes filed a motion to suppress the contents discovered
          from the computer and disk searches. 145 He claimed that this
          evidence was the result of a warrantless and unconstitutional search
          that violated his Fourth Amendment rights. 146 The district court denied
          this motion. Ickes was convicted of transporting child pornography,
          and he appealed his conviction. 147

          The Fourth Circuit held that the evidence obtained by the search
          was properly presented at Ickes’s trial.” 8 The court first affirmed the
          customs agents’ statutory authority to search Ickes’s van and cornputer.”
          9 Reasoning that the “plain language” of the statute was meant
          to be read expansively, the court determined that a laptop fits into the
          list of items a customs official may properly search. 15°
          Next, the court considered whether, notwithstanding the statutory
          authority, a border search of a laptop computer is constitutional.”‘ Although
          the court did not describe it as such, they employed a two-step
          analysis to determine whether the customs agent had the requisite level
          of suspicion and whether the search itself was reasonable. 15″ First, the
          court affirmed that probable cause was not necessary for the customs
          agent to proceed, but although declining to indicate what level of suspicion
          the agent must have to search Ickes’s computer, the court implied
          that the officers had reasonable suspicion to validate the search. 153 Next,
          the court weighed the interests of the government against the individual’s
          privacy interests, and found, as in the Supreme Court cases United
          States v. Montoya de Hernandez and United States v. Ramsey, that at the borders,
          the balance favors the government’s interests.154

  4. DXer said

    Video Captures Bradley Manning With Hacker Pals at Time of First Leaks
    • By Kim Zetter
    • May 20, 2011

    http://www.wired.com/threatlevel/2011/05/bradley-manning-in-boston/

    Comment: It is always best to consider the merits of the Fall 2001 anthrax mailings on their own merits. It is fallacious reasoning to argue the merits of other matters as if it were probative of an Ivins Theory. Or to think the merits of an Ivins Theory bear on other matters. In the case of the unrelated matter featured by Lew, a public interest lawyer taking care in the law that resulted would choose a plaintiff with the clearest equities.

    • DXer said

      Watch the Frontline investigation on this Wikisecrets issue and Boston connection beginning today.

      And then hope Frontline does excellent work also on Amerithrax.

      Frontline has a long history of doing excellent work.

      INTERVIEW – POST OFFICE EMPLOYEE AHMED SATTAR, REPRESENTATIVE FOR THE “BLIND SHEIK” OMAR ABDEL- AL RAHMAN
      http://www.pbs.org/wgbh/pages/frontline/shows/binladen/interviews/sattar.html

      • Zicon said

        I wonder how this makes people feel, when they find out things like this… Unhappy pissed off… Does it contribute to more hate torwards both sides of governments??? Psychology plays a huge part between governments and the people… If everyone is stupified then they (govs) have nothing to worry about.. So when people exercise there right to form a union or protest, why is the FBI/Federal governemnt up everyones ass???

        Also knowing that our tax dollars are going to things/people like this… Who in the hell are approving these decisions.. Is there no oversight at all… Damit man…

    • Zicon said

      I read the article on Manning… But from a legal stand point, Isn’t it Innocent until proven guilty in a “Court of Law” via a jury of ones peers??? But based on Obamas public statements saying that he’s already guilty, Doesn’t that already plant the pretext seed in the worlds mind, and thus he can’t really get a fair trial by a jury of his peers? I mean come one how many people can say that they can be 110% impartial to things to make a decision on the facts or will they make a decision on the fact that even though he did go about things wrong Did those things need to happen.. Probably so.. Perhaps if he would have had a secure portal to the “GAO”, perhaps they could have really done something about it, and he would still be a free man at this time.. Even still dealing with the ramifications…
      But how many solders can say that they have had their problems or issues properly addressed instead of being told to quit being a pussy and to suck it up by their superiors on things that are of serious matters… Even watching the video of the chopper mowing down all those innocent kids and reporters with 50mm rounds,, Not one shot was ever fired from the ground at the chopper or ground troops coming in, yet they were murdered… That’s F-ING DISGUSTING… THAT”S NOT WAR.. That is down right murder… If I were a juror That would be my assesment of those who were being charged or everyone in the chopper including the commander that gave the ok to shot at innocent kids and reporters… And that makes me sick, to think that people are that gutless, heartless, and the biggest A Holes that our US government is producing.. Oh wait the next school generation will be just as stupid since they are laying off hundreds of teachers.. WTF DID thousands of kids just up and disappear?? TO me from the governments eyes lets just dumb down the generations to come, so they won’t know what civil liberties are or civil rights are, or that everyone has rights too.. Wake up… That is worse than “Betrayal or Treason beyond any doubt…” And that is war??? Seems like another Hitler was running things… There are far better ways to deal with problems than the ways that are being done now…

  5. Zicon said

    There is a larger issue at hand is the government could just very well invoke the NSA National Security Act of 1947 if I’m correct at anytime they want.. And from a Rights pov.. We have how much? ZERO.. ZILCH… NONE… So how in the hell can/do you defend yourself and get a fair public trial? Can the Sup. Courts answer that question?

    I mean are the laws that are governing our society getting out of control with no oversight… really how much power does the ACLU really have on ones behalf…
    Hell I can’t even get my own medical records from a hospital, and the hospital is really and legally keeping me from getting further medical attention, but with all the laws and loopholes I can’t do anything about it… Do I have millions of dollars to throw away on legal for the hell of it… Nope.. But is there more than one way to get what you want.. Most certainly!!! WIth a big smile 🙂 That was just a real example of how laws and rules are written sometimes, and on the spur of the moment to only work for the government/private corps. at hand and no one else… If a government/corporations can do illegal things or legal that has been written as loop holes to ONLY benifit them, then what chance does the generations to come have… They won’t know any different unless taught at home, b/c it’s certainly not going to be taught in the public school systems… And that’s facts coming straight from ME!

  6. DXer said

    Assuming that it is a case of first impression in the First Circuit, then the government can be expected to urge the District Court to follow the Ninth Circuit rule. While an interesting issue, and while the ACLU is the appropriate counsel to litigate it, it is surprising that they did not choose as their lead plaintiff some Joe Citizen who had no connection to hackers or a national security breach of historical importance.

    OUTSTANDING STUDENT ARTICLE: INTERNATIONAL TRAVELERS BEWARE: NO REASONABLE SUSPICION NEEDED TO SEARCH YOUR ELECTRONIC STORAGE DEVICES AT THE BORDER

    NAME: Bret E. Rasner *

    BIO:
    * J.D., 2010, Phoenix School of Law. Manuscript Editor, PHOENIX LAW REVIEW, Vol. III.
    Faculty Advisor’s Note: The author is a winner of PHOENIX LAW REVIEW’S Faculty Advisor’s Award for Volume III.

    … Like the Fourth Circuit in Ickes , the United States Court of Appeals for the Ninth Circuit upheld a border search of a laptop computer containing child pornography that occurred after agents had established a reasonable suspicion to conduct a search. … The district court in Arnold recognized that because electronic storage devices are capable of recording and storing a person’s thoughts, they “function as an extension of our own memory” and a search of these thoughts can be just as intrusive to a person’s dignity and privacy interests as a strip search or cavity search. … If an attorney is subjected to a border search of his attorney-client privileged data, the attorney must resolve whether the authority granted to Department of Homeland Security agents to conduct border searches constitutes a law that supersedes Arizona Ethical Rule 1.6, and whether it requires disclosure of client information. … One court has used the Fifth Amendment to protect a traveler crossing the border from having to reveal the password for a laptop. … In an unreported District of Vermont case, CBP and ICE agents at a Canada-United States border checkpoint selected Sebastien Boucher for secondary inspection and subsequently found evidence of child pornography on an encrypted drive on his computer that he voluntarily showed the agents.

    TEXT:
    [*670] I. INTRODUCTION
    The Fourth Amendment of the United States Constitution states: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” n1 One exception to the Fourth Amendment is the “border search doctrine.” The border search doctrine is a legal tool the federal government uses to carry out one of its primary functions: insuring the security of our nation’s international borders. n2 A “routine” search of a person crossing an international border into the United States does not require any particularized suspicion of criminal activity. n3

    Both the Fourth and Ninth Circuits have extended the border search doctrine to apply to electronic storage devices–including personal laptop computers–and have determined reasonable suspicion that “criminal activity is afoot” n4 is not required to justify a routine search of the information stored on such devices. n5 This can cause problems for international travelers given the proliferation of powerful compact and portable electronic devices they may carry with them for communication, entertainment, and business. Conceivably, [*671] one could carry a laptop computer, a smart-phone or PDA, a USB drive, CD or DVD media, and a digital media player such as an iPod all at the same time. Each of these devices is capable of storing a dizzying array of personal information. A laptop, in particular, is capable of betraying all kinds of embarrassing personal information, regardless of the legality of storing the information or the search that may find it. An international traveler’s laptop may also contain trade secrets, privileged information, or information subject to other legal protections. A search may reveal not only private, confidential, or privileged data about the traveler but also about third parties.

    The Bureau of United States Customs and Border Protection (“CBP”) which operates under the auspices of the Department of Homeland Security, n6 is the agency primarily entrusted with border security and has the authority to conduct border searches of international travelers. n7 CBP inspects electronic devices to discover information regarding terrorism, human and bulk cash smuggling, national security matters, contraband including child pornography, financial and commercial crimes, including violations of copyright or trademarks, and export control. n8 Customs agents may perform “routine searches of the persons and effects of [any] entrants . . . [at international borders without being] subject to any requirement of reasonable suspicion, probable cause or warrant.” n9 The Supreme Court specifically identified that a search of cargo and passengers of an airplane arriving at an American airport after traveling abroad would be the functional equivalent of a border search. n10

    This article examines the border search doctrine as it pertains to the search of laptop computers and other electronic storage devices, with attention [*672] to the effect of these searches on attorney-client privileged data. Part II introduces the border search doctrine as an exception to the requirements of the Fourth Amendment. Part III examines United States Customs and Border Protection’s policies and procedures for conducting border searches, as well as the treatment of cases arising from border searches in the Fourth and Ninth Circuits. Part IV examines the Fourth and Ninth Circuits’ holdings and evaluates proposed legislation in both the United States Senate and the United States House of Representatives to correct perceived flaws in the border search doctrine as it relates to the electronic devices carried by United States citizens. It also briefly examines data encryption and discusses Arizona Ethical Rule 1.6(d)(5), n11 which addresses disclosure of privileged client information pursuant to other laws and court orders. Part V concludes that a particularized individual suspicion should be required before United States citizens, and their electronic storage devices, be subjected to as intrusive a search as is allowed today at our international borders and also suggests a policy for handling attorney-client privileged material during those searches.

    II. THE BORDER SEARCH DOCTRINE

    According to the Fourth Amendment, searches made without the prior approval of a magistrate are per se unreasonable unless the search falls within established exceptions. n12 Examples of exceptions include searches incident to arrest, stop and frisk, and exigent circumstances. n13 The Supreme Court of the United States has held that a border search stands on its own as an exception to the probable cause and warrant requirements of the Fourth Amendment, as opposed to being justified by exigent circumstances. n14

    The border search doctrine has been recognized since the Founding. n15 Section 24 of the Act of July 31, 1789 “granted customs officials ‘full power and authority’ to enter and search ‘any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . .'” n16 This plenary customs power to search was “differentiated from the more limited power to enter and search ‘any particular [*673] dwelling-house, store, building, or other place’ where a warrant upon ’cause to suspect’ was required.” n17 Although the original border search authority required “reason to suspect” prior to conducting a search, searches of individuals and their belongings may be conducted today without any particularized suspicion at all. n18

    Locations that act as the functional equivalent of a border, such as an airport terminal handling international flights, also fall within the border search doctrine. n19 The border search doctrine allows searches of the “extended borders” in addition to the actual and functional borders of the country. n20 In the context of an “extended border search,” the term “border” is given flexible meaning and recognizes that some searches remove customs agents from the actual border by time and distance. n21 Nonetheless, the law permits searches under the “extended border” search doctrine as it does any other border search. n22 The crucial element for determining whether an extended border search may be made is whether there is a reasonable suspicion that a search would disclose illegal material recently imported across the border illegally. n23 According to the Fourth Circuit, “[t]he test of the validity [of an extended border search] is one of reasonableness under the circumstances.” n24

    [*674] A. Routine Versus Non-Routine Searches

    A search of a traveler’s person or property has to be justified in relation to the degree of invasiveness of the search. Because the invasiveness of the search permitted varies depending on the degree of suspicion, authorities generally use the terms “routine” and “non-routine” to describe the invasiveness of the permitted search. These terms can be misleading because the courts have interpreted and used them differently over the years.

    In general, whether a border search is justifiable without a warrant depends on the degree of intrusiveness of the search and the level of suspicion CBP officers have that criminal activity is occurring. In 1985, the Supreme Court of the United States stated, “[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant . . . .” n25 On the other hand, in 2002, the Ninth Circuit took this language, particularly the word “routine,” and created a balancing test for routineness depending on the degree of intrusiveness of the search, and applied it to searches of property. n26

    Later, in United States v. Flores-Montano, the Supreme Court held that the Ninth Circuit mistakenly created a balancing test from its 1985 decision and said “reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person–dignity and privacy interests of the person being searched–simply do not carry over to vehicles.” n27 The Court further stated that “[c]omplex balancing tests to determine what is a ‘routine’ search of a vehicle, as opposed to a more ‘intrusive’ search of a person, have no place in border searches of vehicles.” n28 In essence, the Court treated the words “routine” and “non-routine” as merely descriptive. n29 The Court then reiterated that searches made at the border are reasonable because they are conducted at the border. n30

    Even though the Court disapproved of the “routine” search balancing test as it applied to vehicles in the 2004 Flores-Montano decision, the Ninth Circuit in Chaudhry indicated that this balancing test does apply to searches [*675] of people. n31 This article, when discussing cases decided prior to Flores-Montano, may describe searches of property as “routine.”

    B. Invasiveness on Entrant’s Privacy Expectations

    Although routine inspections at the border require no suspicion of criminal activity to be lawful, more invasive inspections are subject to some limitations. Courts have focused on the degree of invasiveness on a border entrant’s privacy expectations in determining the level of suspicion required for the authorization of such searches. n32 The First Circuit, in United States v. Braks, listed the following factors that courts, including the Supreme Court, have looked to in determining the degree of invasiveness in regards to a search:

    (i) whether the search results in the exposure of intimate body parts or requires the suspect to disrobe;

    (ii) whether physical contact between Customs officials and the suspect occurs during the search;

    (iii) whether force is used to effect the search;

    (iv) whether the type of search exposes the suspect to pain or danger;

    (v) the overall manner in which the search is conducted; and

    (vi) whether the suspect’s reasonable expectations of privacy, if any, are abrogated by the search. n33

    Courts may balance the factors listed above to determine the constitutionality of a search. The level of suspicion required for the authorization of such searches differs depending on whether the search is routine or non-routine. In general, the extent of the intrusion into a person’s privacy will dictate the degree of justification the government must have to search.

    Body cavity searches and strip searches, being much more personally intrusive to the entrant, are considered non-routine searches. n34 Non-routine [*676] border searches and seizures require a reasonable suspicion to justify their use. n35 Inspections that pose no serious invasion of privacy and do not embarrass or offend the average traveler are considered routine. n36 Searches of luggage, personal effects, purses, wallets, and overcoats are examples of routine searches. n37 The Ninth Circuit has held that inspections of property by x-ray or other technology are permissible as part of a border search without any particularized suspicion as long as the inspection is not personally intrusive, does not significantly harm the objects being inspected, and does not unduly delay transit. n38

    III. AUTHORITY AND JUDICIAL APPROVAL FOR BORDER SEARCHES

    A. United States Bureau of Customs and Border Protection Border Search Policy

    On August 27, 2009, the United States Bureau of Customs and Border Protection announced n39 new internal directives for “searching, reviewing, retaining, and sharing information” contained in any electronic or digital device at borders, the functional equivalent of borders, and extended borders. n40 These procedures for inspecting information apply to both inbound and outbound travelers, and the inspections usually require no particularized individual suspicion that a law CBP enforces is being violated. n41 CBP may seek assistance with translation and decryption from other government agencies without individualized suspicion. n42 It may also seek assistance from other federal agencies or entities to evaluate the substance or value of information stored but only when its officers have a reasonable suspicion that there has been a violation of law CBP enforces. n43

    The policy allows CBP officers a reasonable period of time in which they may detain devices or information and perform a thorough border [*677] search. n44 The procedures also provide that the search may take place at an off-site location. n45 Under normal circumstances, officers should not detain devices for more than five days. n46 If officers find nothing during the search to give them probable cause to seize the information, then they must destroy the information and any copies. n47 Agencies assisting CBP, which do not have an independent authority to retain the information, are required to return the information to CBP or certify that the information has been destroyed. n48

    The policy does include limited “special handling procedures” for privileged and other sensitive information, including “materials that appear to be legal in nature,” n49 medical records, n50 journalistic materials, n51 and business or commercial information. n52 The policy indicates “legal materials are not necessarily exempt from a border search,” n53 and provides some instruction to searching agents. If an officer believes a legal document may reveal evidence of a crime within the jurisdiction of the CBP, the officer must seek advice from the CBP Associate/Assistant Chief Counsel’s office and coordinate with the United States Attorney’s office before searching the legal material. n54 Under the policy’s guidelines for seeking subject matter assistance, assisting agencies, such as the Attorney General’s office, must reply “expeditiously” so that the search may be completed in a reasonable time. n55 Without special approval, responses should be received within fifteen days. n56 However, CBP can grant seven-day extensions if the assisting agency is unable to respond within the initial fifteen days. n57 The policy does not mention how many extensions may be granted.

    To summarize, CBP may stop a traveler entering or exiting the United States, subject his private printed and electronic materials to in-depth scrutiny, share such private information with other government agencies, and remove the traveler’s electronic devices to an off-site location for further [*678] inspection for a “reasonable” period of time. All of this may be done absent any individualized suspicion that the traveler is carrying contraband or involved in criminal activity.

    B. Fourth and Ninth Circuits and Border Searches of Electronic Storage Devices

    Although the CBP searches for information pertaining to terrorism and national security matters, child pornography cases lead the way in shaping the jurisprudence in this area. All three of the leading cases evaluating the legality of searches of electronic storage devices under the border search exception involve child pornography contraband.

    1. Search Subsequent to Reasonable Suspicion: United States v. Ickes

    On August 4, 2000, John Ickes sought to cross the border into the United States from Canada at the Ambassador Bridge port of entry near Detroit, Michigan. n58 He indicated to a United States Customs Inspector that he was returning from vacation, but the van he was driving appeared to the inspector to contain “everything [Ickes] owned.” n59 During a secondary inspection, an agent performed a cursory search and discovered a video camera, which contained a tape focusing excessively on a young boy. n60 Further searching revealed drug paraphernalia and a copy of a warrant for Ickes’ arrest. n61 The agent also found photos of nude and semi-nude prepubescent boys in provocative poses, a computer, approximately seventy-five disks containing child pornography, and a video of Ickes fondling young children’s genitals. n62

    Ickes filed a motion to suppress the evidence found on the computer and disks as a violation of his First and Fourth Amendment rights. n63 His motion was denied on the grounds that the search fell within the extended border search exception to the Fourth Amendment. n64 Ickes was subsequently found guilty of transporting child pornography. n65

    [*679] The United States Court of Appeals for the Fourth Circuit upheld the legality of the search. It reasoned that the breadth of the authority Congress extended to CBP officers to conduct border searches was sufficiently “sweeping” to authorize the search of Ickes’ van and its contents, including the computer and disks. n66 According to the statute:

    Any officer of the customs may at any time go on board of any vessel or vehicle at any place . . . in the United States or within the customs waters … or at any other authorized place … and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package or cargo on board … n67

    The court held that Ickes’ electronic equipment was “cargo,” and therefore the statute’s expansive language did authorize the search. n68 After determining agents had statutory authority to conduct the searches, the court considered whether they were constitutional under the border search doctrine and held they were. The court noted there had been a “long-standing recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable.'” n69 The court added that the government’s protectionist interest at the border outweighs the privacy interest of the person seeking admission because there is a lower expectation of privacy outside of one’s home. n70

    The court also refused to carve out a First Amendment exception to the border search doctrine on the grounds that an item being searched is “expressive.” n71 It explained that this policy would create “a sanctuary at the border for all expressive material-even for terrorist plans” –and “would ensure significant headaches for those forced to determine its scope” at the time of a search. n72 The court considered it “far-fetched” that many innocent travelers would be at risk of intrusion into what they probably considered [*680] private information, because $”[c]ustoms agents have neither the time nor the resources to search the contents of every computer.” n73

    The court affirmed Ickes’ conviction and concluded that the agents had conducted a lawful search of Ickes’ van and its cargo. n74 The court did not indicate what would be the minimum level of suspicion required for a search of an electronic storage device at an international border, but it did determine that under the border search doctrine, probable cause was not necessary. n75

    2. Search Likely Conducted Pursuant to Reasonable Suspicion: United States v. Romm

    Like the Fourth Circuit in Ickes, the United States Court of Appeals for the Ninth Circuit upheld a border search of a laptop computer containing child pornography that occurred after agents had established a reasonable suspicion to conduct a search. n76 In United States v. Romm, a Canadian Border agent denied Stuart Romm admission to Canada after the agent determined from Romm’s “internet history” that he had been visiting child pornography websites. These web site visits violated the terms of the probated sentence he had received after pleading nolo contender to various sexual offenses involving children, including “child exploitation by means of a computer.” n77

    The Canadian agent informed U.S. Customs agents in Seattle that the agent denied Romm entry into Canada because of the possibility that Romm’s computer contained child pornography. n78 Upon Romm’s return to Seattle on February 2, 2004, Immigration and Custom Enforcement (“ICE”) n79 agents conducted a preliminary forensic analysis of Romm’s hard drive that revealed ten child pornography images. n80 After a more in-depth [*681] analysis, the agents discovered an additional forty-two child pornography images. n81

    Romm argued that the border search doctrine did not apply, because he did not actually cross the United States-Canada border as a matter of law. n82 The court reiterated the basic principle that “the government may conduct routine searches of people entering the United States without probable cause, reasonable suspicion, or a warrant.” n83 For a border search to be valid, however, the agents must be reasonably certain that the object searched actually did cross the border. n84 The Ninth Circuit rejected this technicality and confirmed that a person “who fails to obtain legal entry at his destination” could be searched upon attempting to reenter the United States “just like any other person crossing the border.” n85

    The court followed Flores-Montano, stating that “searches made at the border … are reasonable simply by virtue of the fact that they occur at the border.” n86 The court evaluated the border search of the laptop as a routine search. n87 It held the forensic analysis of the hard drive proper under the border search doctrine and determined that the district court correctly denied Romm’s motion to suppress. n88

    3. Reasonable Suspicion Is Not Necessary to Search a Laptop Under the Border Search Doctrine: United States v. Arnold

    On July 17, 2005, CBP agents selected Michael Arnold for secondary questioning at Los Angeles International Airport after arriving in the United [*682] States after a nearly twenty-hour flight from the Philippines. n89 CBP agents conducted a search of Arnold’s laptop computer, a separate hard drive, a USB drive and six compact disks. n90 CBP agents found a photo on the laptop depicting two nude women; a subsequent search of the laptop by ICE agents revealed images they believed to be child pornography. n91

    Arnold filed a motion to suppress based on the agents’ lack of a reasonable suspicion to conduct the search. n92 The district court granted his motion, holding that the government failed to prove CBP agents had a reasonable suspicion to search the laptop. n93 The district court reasoned that while a search of a person’s private information is not physically intrusive like a strip search or body cavity search, the search can be just as intrusive of a person’s dignity and privacy interests. n94 Further, the court added that because electronic storage devices are capable of storing a person’s thoughts, the “devices function as an extension of our own memory” and “are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature.” n95

    On appeal, Arnold analogized a laptop to a home or mind because of the laptop’s vast information storage capacity and its ability to record private thoughts, ideas, e-mail communications, internet usage habits, and chat sessions. n96 Arnold also urged the court to break away from Ickes and hold that the First Amendment requires reasonable suspicion to search material even at the border where there is a high risk of exposing expressive material. n97

    The Ninth Circuit began its analysis by explaining that the Supreme Court “has expressly declined to decide ‘what level of suspicion, if any, is required for non-routine border searches . . . .'” n98 Nevertheless, the Court had also “held open the possibility ‘that some searches of property are so [*683] destructive as to require’ particularized suspicion.” n99 The Ninth Circuit concluded its description of the state of border search doctrine law by observing that the Supreme Court had also left unresolved whether a border search could rise to “unreasonable” because of the circumstances and manner in which the search is carried out. n100 The court then analyzed such potentially “unreasonable” circumstances that might justify requiring particularized suspicion prior to a border search.

    a. Intrusiveness

    The Ninth Circuit determined that the district court erred in deciding a particularized suspicion was necessary to search a laptop and rejected its sliding scale analysis requiring that “as the search becomes more intrusive, more suspicion is needed.” n101 The Ninth Circuit did not, however, use a balancing test to determine whether the laptop search was routine due to the Supreme Court’s admonition in Flores-Montano that the Ninth Circuit had erred in creating and applying a similar balancing test to a search of a vehicle’s fuel tank. n102 Instead, the court stated that trying to distinguish the instant case from Flores-Montano was incorrect because

    the Supreme Court’s analysis determining what protection to give a vehicle was not based on the unique characteristics of vehicles with respect to other property, but was based on the fact that a vehicle, as a piece of property, simply does not implicate the same “dignity and privacy” concerns as “highly intrusive searches of the person.” n103

    In rejecting the analysis used in Flores-Montano, the Ninth Circuit concluded that border searches conducted by customs officials involving laptops [*684] and other personal storage devices do not require reasonable suspicion. n104

    b. Exceptional Damage to Property and Particularly Offensive Manner

    The Ninth Circuit also rejected Arnold’s three other related arguments. The Supreme Court had previously held that a search damaging to property might require particularized suspicion to perform the search. n105 Arnold failed to claim the search damaged his laptop, so the Ninth Circuit did not consider this potential reason to require reasonable suspicion. n106

    Arnold also argued that the search was done in a particularly offensive manner, but the court found nothing in the record to support that claim and stated that Arnold failed to distinguish other allowable border searches from the search of his laptop. n107 The court also dismissed Arnold’s analogy that a laptop was like a house, relying on California v. Carney, where the Supreme Court rejected applying the same Fourth Amendment protections afforded to a person’s home to property which is “capable of functioning as a home.” n108

    Lastly, the Ninth Circuit, finding the Fourth Circuit’s reasoning persuasive, refused to split with the Fourth Circuit’s decision in Ickes not to create a First Amendment exception to the border search doctrine. n109

    IV. THE FUTURE OF THE BORDER SEARCH DOCTRINE

    A. Fourth and Ninth Circuit Opinions Examined

    Because courts consider searches of entrants and their belongings at the border reasonable, courts tend to defer to the professional judgment of the officers at the border, n110 and those objecting to the search have the affirmative burden to explain why the search might violate a citizen’s Fourth Amendment rights. n111 If there is no such reason, then the search is permissible. [*685] Today, the permissibility of a search of a person is assessed by determining whether a search is routine. This determination is based on the invasiveness of the search–whether the entrant has a reasonable expectation of privacy–under the circumstances, balanced against legitimate government interests in performing the search. n112 In general, the government’s interest “in preventing against entry of unwanted persons or effects is at its zenith at the border,” n113 while an individual’s expectation of privacy is lower at the border than otherwise. n114 A strip search or cavity search would be considered non-routine, based on concerns for human dignity and privacy-related interests in bodily integrity, n115 and would have to be justified by at least a reasonable suspicion. n116 A search of property is not predicated on intrusiveness, but on the destructiveness or offensive manner of a search. n117

    Ickes, Romm, n118 and Arnold n119 all claimed agents violated their First Amendment rights because the offensive content of their laptops and other digital storage devices was expressive material. n120 The Ickes court, for example, decided not to carve out a First Amendment exception to the border search doctrine without considering the invasiveness of the search upon Ickes’s privacy interests. n121 The court merely concluded that the government’s interest was high and Ickes’s interest was low by virtue of just being at a border. n122 The court also made claims, without offering any reason, that a First Amendment exception would create a sanctuary for terrorist plans and would make CBP officers’ jobs more difficult. n123 The First Amendment encompasses a fundamental right and should be treated accordingly; the degree of difficulty CBP faces when making determinations about who to search at the border and about what is expressive material should not be a [*686] factor in whether to protect that right by requiring probable cause to search. n124

    All three defendants also made Fourth Amendment claims in regards to their expectation of privacy in their property. Prior Fourth Amendment jurisprudence more directly addresses the privacy interests implicated in computer searches than Ickes, Romm, and Arnold.

    In California v. Greenwood, the Supreme Court set out a two-part test for Fourth Amendment protection of property. n125 Under that test, the warrantless search and seizure of information on a computer would violate the Fourth Amendment if there were a subjective expectation of privacy in the content that society would accept as objectively reasonable. n126 In border search cases, courts bypass this test in favor of the border or extended border search doctrine on the theory that those approaching a border have a much lower expectation of privacy than they would internally, because it is well known that CBP agents search both persons and property. n127

    The cumulative effect of the border search cases is a substantial restriction on privacy rights in property at the border. First, the Supreme Court in Flores-Montano stated that with respect to vehicles, “reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person–dignity and privacy interests of the person being searched–simply do not carry over to vehicles.” n128 The Ninth Circuit then confirmed the broadest possible interpretation of this holding in Arnold, finding that there are no dignity or privacy interests implicated in a search of an electronic device containing stored information, even in light of the First Amendment interests at stake. n129 The ultimate result of this line of cases is that property is virtually stripped of any Fourth Amendment search protection in a border search setting.

    When considering the Ickes, Romm, and Arnold cases, Arnold is distinguishable because the level of suspicion varied. In Ickes, customs agents [*687] had a reasonable suspicion to search. n130 The Romm court chose not to decide if the search was routine or non-routine, n131 but Canadian border officials had alerted the American customs agents that Romm was carrying contraband, so the search back at the United States border was not a coincidence. n132

    Arnold, however, was chosen at random for secondary inspection. n133 Reasonable suspicion in the border search context generally ends the analysis because once there is reasonable suspicion, agents can conduct even a highly invasive non-routine search, including a strip or cavity search, without a warrant. n134 Courts look to the degree of invasiveness into a person’s dignity and expectation of privacy only when there is no reasonable suspicion to support the search. n135

    Interestingly, the district court in Arnold, where there was no reasonable suspicion to search, n136 applied an intrusiveness standard to property after the Flores-Montano decision, n137 which essentially stated that intrusiveness factors, dignity and privacy interests, are not applicable to property. n138 This was an application of old-fashioned thinking to a modern problem. Courts of even just a couple of decades ago could not have imagined that a hard drive in a laptop would have enough storage capacity to transport more data than would be found in three floors of a research library. n139 This volume of paper would be impossible for a person to carry. Comparing the information storage capacity of modem electronic storage devices to marijuana sealed to a gas tank with Bondo is just not realistic in today’s information-centered society.

    The district court in Arnold recognized that because electronic storage devices are capable of recording and storing a person’s thoughts, they [*688] “function as an extension of our own memory” and a search of these thoughts can be just as intrusive to a person’s dignity and privacy interests as a strip search or cavity search. n140 The Ninth Circuit rejected that reasoning, however. n141 Fortunately, proposed legislation reflects the district court’s reasoning and recognition of the fundamentally different nature of information stored on electronic devices versus other personal property. n142 Unfortunately, the legislation appears to have stalled on the path through Congress. n143

    B. Congress Calls for a Reasonable Suspicion and Safeguards for Information

    Some lawmakers are dissatisfied with the state of digital equipment search policy as it stands and have taken action on this relatively recent development of the law. On January 7, 2009, the Securing Our Borders and Our Data Act of 2009 (“House Bill 239”) was introduced in the House of Representatives. n144 The Bill requires reasonable suspicion prior to any border search or seizure of any digital electronic device or digital storage media. n145 The bill also requires that any seizure of a device or the data on the device be based on some authority to seize other than that which arises simply by virtue of an entry to the United States. n146

    Under House Bill 239, the Secretary of Homeland Security would have to promulgate policies for protecting data, how and where data would be stored, sharing of data with other agencies, rights of individuals to have devices returned, and receipts for seized items. n147 The Department would have to publish these policies on their website. n148

    [*689] Prior Congresses have considered similar bills seeking to impose limits on border searches of electronic devices. The Electronic Device Privacy Act of 2008 would have stripped CBP officers of the authority to require entrants to the United States to submit to a search of the electronic contents of his laptop or other devices. n149 The bill did not restrict any lawful search based on authority other than the border search doctrine. n150

    The Border Security Search Accountability Act of 2008 would have required the Secretary of Homeland Security to issue rules regarding the scope, procedures, and recordkeeping associated with border searches of any electronic devices. n151 The procedures included special care instructions for privileged information, a determination of the number of days devices could be retained, written notice to device owners that information collected was being copied, shared, retained, or entered into a database, and receipts for devices. n152

    The Travelers’ Privacy Protection Act of 2008 (“Senate Bill 3612”), outlined a long list of proposed Congressional findings on the topic of border searches. n153 Chief among the proposed findings was that citizens “have a reasonable expectation of privacy in the contents of their laptops . . . and other electronic equipment.” n154 The proposed findings also stated that a person’s privacy interest in the data on his or her laptop is different from the privacy interest a person would have in other closed containers. n155 Congress reasoned that laptops could contain massive amounts of personal information, including privileged work-product materials. n156 Moreover, people often cannot control and are not aware of some information that may be contained on their computer. n157 The proposed findings also stated that searches of electronic equipment could be more invasive than other [*690] searches, such as physical locations or objects. n158 These proposed findings are direct responses to the recent appellate court decisions concerning laptop searches at international borders, because they recognize the very same privacy interests that the Courts of Appeals have rejected.

    Senate Bill 3612 would have required a customs official to have a reasonable suspicion that an entrant either was carrying contraband or was not entitled to enter the country before searching an entrant’s electronic equipment. n159 Further, the bill also laid out general guidelines regarding the time-frame for examination of the equipment, the contents of the equipment, with whom information may be shared, and the security and destruction of information. n160

    Common threads of the proposed Congressional bills are that a search that heavily burdens a United States citizen’s Fourth Amendment rights, must be based on at least a reasonable suspicion, and safeguards must be put in place to protect the individual’s private information. With a reasonable suspicion requirement, the Ickes and Romm cases would have come out the same because there was reasonable suspicion for the searches. n161 The Arnold case would likely have been decided differently under any of the proposed bills because there was no reasonable suspicion, and, absent the random search, Arnold would have likely passed through customs without incident.

    In contrast to proposed legislation, CBP’s current internal policy requires no individual suspicion to conduct a routine search of entrants and their belongings. n162 In fact, according to a CBP publication, “CBP officers use random inspections to concentrate on finding those few passengers who are not obeying the law.” n163 The express terms of CBP policy seem to admit that its searches burden the interests of more law-abiding citizens than criminals.

    Unlike the Fourth Circuit’s reasoning in Ickes that people have a lessened expectation of privacy at the border, n164 Congress’s first finding in Senate Bill 3612 states that citizens have a reasonable expectation of privacy [*691] in their electronic equipment. n165 Congress’s findings make no distinction between the border and elsewhere. n166

    While the legislative branch recognized the privacy interests in electronic information, the executive branch seeks to expand the government’s ability and capacity to perform suspicionless searches. It has done so through both its broad search policies and prosecution strategies in border search cases. For example, in United States v. Chaudhry, Judge Betty Fletcher of the Ninth Circuit actually filed a special concurrence to “express [her] distaste for the government’s game-playing” in several recent Ninth Circuit appeals in which it refused to present evidence it had to support a reasonable suspicion to search in order to maintain or perhaps expand the boundaries of the suspicionless border search doctrine. n167

    C. Lawyers’ Duty to Protect Privileged Information

    One situation where a heightened standard is necessary and should be required is if a lawyer is selected for secondary inspection, and CBP asks him to hand over his computer, and more importantly, the information it contains. Notwithstanding the lawyers’ own Fourth Amendment interests, lawyers may have ethical obligations with respect to attorney-client privileged materials that CBP policy fails to protect.

    1. Ethical Question for Arizona Lawyers

    Arizona’s ethical rule dealing with confidentiality of information states that an attorney shall not reveal client information unless the client gives consent; disclosure is authorized to carry out the representation of the client; or disclosure is permitted or required by another paragraph or rule. n168 A lawyer may disclose client information if the lawyer reasonably believes that the disclosure is necessary “to comply with other law” or a final order of a court directing disclosure. n169 Comment 14 to Arizona Ethical Rule 1.6 states that whether a law requiring disclosure of client information supersedes the rule is “a question of law beyond the scope of the Rules. n170 The [*692] comment further states that if another law “supersedes this Rule and requires disclosure, paragraph (d)(5) permits the lawyer to make such disclosures as are necessary to comply with the law.” n171

    If an attorney is subjected to a border search of his attorney-client privileged data, the attorney must resolve whether the authority granted to Department of Homeland Security agents to conduct border searches constitutes a law that supersedes Arizona Ethical Rule 1.6, and whether it requires disclosure of client information. If not, is there a final court order that requires the disclosure?

    CBP asserts that its power to search entrants at the border stems from 19 U.S.C. § 1582 and 19 C.F.R. § 162.6. n172 Even if both are superseding laws-Arizona’s ethics rules provide no definition for “superseding law” and both grant authority to search, neither expressly requires a disclosure of attorney-client privileged information. n173 However, the border search doctrine itself is a judicially recognized exception to the warrant and probable cause requirements of the Fourth Amendment. Whether the exception operates as a superseding law or a final order of a court is beyond the scope of this paper, but the result is the same; Ethical Rule 1.6(d)(5) is permissive and does not require disclosure.

    Ethical Rule 1.6(d)(5) allows for disclosure upon the final order of a court; however, per Comment 15, if a lawyer is called as a witness or is otherwise ordered to reveal client information, the lawyer must assert on the client’s behalf that the information is protected by “this Rule, the attorney-client privilege, the work product doctrine, or other applicable law.” n174

    William Dunn, Chair of the ABA’s Standing Committee on Ethics and Professional Responsibility, has stated that an attorney who is required to reveal his computer files at a border search has a duty to protect privileged client information. n175 It seems clear from the permissive language of Ethical Rule 1.6 in general and Comment 15 to that rule in particular that an attorney should not disclose the contents of his computer during a border search in order to protect privileged client information.

    2. Pitfalls of the Current CBP Attorney-Client Privilege Document Search Policy

    Under the current CBP policy, a CBP officer must seek advice from the CBP Associate/Assistant Chief Counsel when he believes that a legal document may reveal evidence of a crime within CBP’s jurisdiction. n176 If appropriate, CBP Associate/Assistant Chief Counsel will then consult with the United States Attorney’s office before searching the legal document. n177

    Border searches have uncovered privileged information, and in one case, a pending prosecution gave rise to the search of a defense team member’s privileged material at the border. On May 4, 2006, defense investigator George Scott returned to the United States via Miami International Airport where he was selected for inspection based on information from an informant. n178 At the airport, CBP agents searched Scott’s luggage and found “notes of his interviews with potential witnesses, photographs relating to the defendant’s case, a hand-written eighteen-page summary of defense counsel’s trial strategy, financial records, and various other documents relating to the case.” n179 Scott informed the agents that the documents were highly confidential. n180

    Instead of inspecting the documents at that time, agents seized the documents, sealed them in transparent bags, and transported to the United States Attorney’s Office. n181 The Government returned the documents in the still sealed bags seven days later. n182 The court reasoned that the Government did not obtain any “fruit” from its possession of the documents so there was no Fourth Amendment violation. n183

    While it appears that no real harm resulted from the seizure in this case, it is not hard to conceive the possible harm if the documents had been reviewed by the very office prosecuting the defendant. The Magistrate Judge did order that some attorneys and other law enforcement officials be removed from the prosecution team in the case as prophylactic protections. n184 [*694] The sanctity of the attorney-client relationship is a foundation of the American justice system. n185 Both Congress and state legislatures should amend current statutes, rules, and guidelines to ensure the maintenance of this important privilege. Part V will suggest a policy for the handling of attorney-client privileged materials.

    D. Passwords and Encryption

    Until there are adequate legal safeguards in place to protect electronic information at the border, travelers may seek to protect their privacy interests through other means. Passwords and encryption allow a certain amount of security in one’s stored data. On the other hand, password protection and encryption can garner extra attention from searching agents. n186

    Although border search authority is based upon on an exception to the Fourth Amendment, citizens still have other guaranteed rights including their Fifth Amendment right against self-incrimination. n187 The Fifth Amendment’s protection against self-incrimination may help when CBP officers require a traveler to reveal a password to get access to information on a laptop. The Supreme Court has stated that the Fifth Amendment applies when a testimonial communication is compelled and incriminating in nature. n188 Doe v. United States further defined a testimonial communication by stating that the “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” n189 In Doe, the Court reasoned [*695] that nearly all verbal statements would fall within that protection because nearly all oral or written statements convey information or an assertion of facts. n190

    One court has used the Fifth Amendment to protect a traveler crossing the border from having to reveal the password for a laptop. In an unreported District of Vermont case, CBP and ICE agents at a Canada-United States border checkpoint selected Sebastien Boucher for secondary inspection and subsequently found evidence of child pornography on an encrypted drive on his computer that he voluntarily showed the agents. n191 After taking possession of the drive, analysts were unable to view the contents of the drive. n192 Boucher moved to quash a grand jury subpoena requiring him to provide the password to the drive or enter it himself, because it violated his Fifth Amendment right not to “be compelled in any criminal case to be a witness against himself.” n193

    The court granted Boucher’s motion to quash the grand jury subpoena. n194 The court determined that compelling Boucher to enter his password to the encrypted drive would force him to produce potentially self-incriminating evidence. n195 It reasoned that the password the government sought only existed in Boucher’s mind and was not any sort of physical evidence, the password’s production would be purely testimonial. n196

    The Boucher court also determined that the “foregone conclusion” doctrine did not apply. The foregone conclusion doctrine can remove Fifth Amendment protection from the act of production if the government already knows of the item and its whereabouts and obtaining it does not add to its case. n197 The Boucher court reasoned that the government did not know the [*696] contents of the encrypted files on the drive and allowing it to see them all by requiring Boucher to reveal the password would add substantially to the government’s knowledge. n198 Further, because the password was not a thing, revealing it would be pure testimony compared to producing a document that might have testimonial aspects. n199

    Providing a password in a grand jury setting is no more testimonial than providing a password during the actual border inspection. At the border, an international traveler with a laptop protected by a password would find himself in the same situation as Boucher. The searching agents would need the traveler’s password to conduct a search for evidence of criminal activity, and the traveler would need to either tell them the password or enter it himself. Unless the traveler consented to the search and provided his password voluntarily, providing the password would be a compelled testimonial communication that would incriminate the owner because it would demonstrate ownership and control over the contents of the computer. n200 Even though the border exception would allow a search of a laptop, citizens should be able to assert the protection of the Fifth Amendment to password protect a computer or device safely when crossing the border in order to keep the computer’s contents confidential.

    V. THE REASONABLE SUSPICION STANDARD SHOULD APPLY TO ELECTRONIC DEVICE SEARCHES MADE UNDER THE BORDER SEARCH DOCTRINE

    The information stored on a laptop is not the direct equivalent of printed material. When a person discards and destroys pages from a document at home, the pages are gone forever. When a person deletes files on a computer, which is the computing analog to discarding printed pages, the files are not truly gone. n201 The only things deleted are the “pointers,” not the [*697] actual files, which are easily recoverable. n202 A search of the computer’s hard drive may betray files, including cached and deleted files, which are legal but nonetheless deeply personal to the owner and embarrassing when viewed by others.

    Electronic storage devices are capable of storing vast amounts of personal data and, when subject to search, they should not be grouped with searches of wallets, purses, luggage, and other containers as being routine and devoid of any dignity or privacy interests. n203 Would it not be just as or nearly as embarrassing for agents to inspect legal nude photos of you and/or your spouse in your presence as it would be to have you strip? Searching a hard drive is not the same as searching through a purse or wallet, so it should not be considered a routine search.

    A search of these devices is also dissimilar from a strip search or cavity search as the person being searched is not actually getting naked or being probed. Electronic storage devices fall somewhere between no privacy interest at all and very great privacy interests. However, there is no corresponding level of suspicion under the law between “no suspicion necessary” and the “reasonable suspicion” standard necessary for non-routine searches of persons, and the Supreme Court has specifically refused to create one. n204 Therefore, any policy for dealing with this type of property must choose between the two. n205 Numerous members of Congress agree that “reasonable [*698] suspicion” is the proper level of suspicion to search electronic storage devices. n206

    Suspicionless searches of international travelers may lead to the discovery of some illegal electronic material, but overall, it is an inefficient use of resources. n207 Even published CBP documentation indicates, “CBP officers use random inspections to concentrate on finding those few passengers who are not obeying the law.” n208

    The only suspicionless inspection of electronic storage devices that CBP should conduct is to require travelers to turn on electronic devices to prove that they are what each traveler purports the device to be. n209 There is no harm done or right burdened by proving that a device presented as a laptop computer is a laptop computer and not some sinister device posing as a laptop computer. Beyond that, random suspicionless searches burden a vast number of citizen’s privacy interests in exchange for catching a very few people with illegal digital content.

    The problem with suspicionless searches is compounded when a lawyer is selected for secondary inspection because of the potential disclosure of privileged information. Border agents need a more expedient, reasonable, and workable handling procedure than simply seeking advice from an agency lawyer. n210 An agency statement that “information determined to be protected by law as privileged or sensitive will only be shared with federal agencies that have mechanisms in place to protect appropriately such information” n211 does not solve a lawyer’s ethical dilemma. n212

    One practical approach to resolving that ethical dilemma would be to require any lawyer selected for secondary inspection to provide both a valid picture ID and a current Bar Association ID and sign an affidavit stating that there is privileged information on his electronic storage devices. At least for Arizona attorneys, agents could quickly check the Bar Association website to confirm that the lawyer was a member in good standing of the bar. n213 [*699] The lawyer could then pass through the inspection doing nothing more. If law enforcement officers later established probable cause to justify a search warrant, and it could be shown that the lawyer carried contraband on his electronic devices when he passed through the border inspection, that lawyer would be subject to an enhanced sentence as well as immediate disbarment. n214 This policy would safeguard attorney-client privileged information, but also provide for stiff punishment as a deterrent to abuse of the policy.

  7. Zicon said

    I personally do advocate that everyone in the world has a FULL and equal right to be safe in every way shape or form…

    Problem with that, is the violation of your personal God given rights(and that goes for what ever God you see fit) as what ever citizen of the country that you live in…

    Most people are so damn closed minded it does make things hard to get across to people… The thing that I have learned is to Never trust a fart and always be open minded… respect everyone until they do something to you where they don’t deserve it..

  8. Zicon said

    So what is one to do when your computer is searched of all it’s contents while your sitting there using it without you even knowing about it or your antivirus picking anything up… There are backdooors to almost every program, that which usually only the platform programmer/PT will know about, and if any software company share their encryption keys with (any) government official or office It just makes it that much easier.. Umm Knock Knock.. Guess who had already roamed through ever single bit of data on your computer and you never even knew it… Why do you think some of the best in the world hackers end up working for a government… It’s the ones that no one knows about or has no clue they even exist are the BEST! Those whos names are known are good, but they got caught… A TOP NOTCH (computer expert) /self taught,( hacker is a nasty term…) one lets just give an example here can roam through a top government bio-facility such as USAMRIID without them even knowing before it’s too late and copy every file they have and just sit on it with hundreds of copies all over the place with backup plans for their own safety for the encryption codes to be sent out if anything were to ever happen… The biggest threats now that the www is seeing now is exe. code running in the background of avi. mov. mpeg type files etc. Since the parameters that have been setup have yet to be taught to learn the new code that runs by the software/antivirus companies…
    I was repairing computers when I was 9 for the school where I went. But I always got bored. It’s all basic just like anything in the world.. You just have to apply your mind to learn the advancements on your own by trial/error since layouts are so guarded now days… So how safe are we each time you log online… It’s less than 25% Even less if you have no antivirus installed and running most updates… If people were to actually sit and read the many pages of so-called contracts or user-end agreements that you must click yes before proceding, if you click yes if anything goes wrong even if it’s not your fault, you are sol… The fine print gives the computer type companies to use any information you type or use via the www any way they see fit and most times witout even letting you know about it… Google is the worst which is above microsoft I figured it would be the other way around 10 years ago… Now facebook is in the running with privacy issues… If you like a private life.. Keep your life and personal daily info OFF the internet/computers or any electronic devices..If you want to broadcast your info to everyone, just put your personal info all over every major website

    What is worse is our laws are decades behind the times and based on how technology is going esp. with the CIA, Army, & AF on top of civilian inventions we’re screwed.. Hell we need a 1000 more Sup. Court Judges to handle the case law just to keep up… But wait just the other day in charlotte NC close to 500 teachers get laid off.. WTF!!! Did 500 times 30 kids per teacher which is average just up and disappear?? Nice going Obama way to put your best foot forward in what is most important with the budget and the future… Some change you had in mind… Seems like Bush baby still has his hand in the cookie jar…

    It’s all 100% Plausable

    Question is has it already been done? If I had a billion dollars I’d bet it is ************
    How many people have accessed any Intell outside of a secure facility where anyone is 110% vonerable to getting any and all access codes for infiltration???
    All it takes is one full access code & depending on which agency it deals with and if that person has full uninhibited access to all government Intell from a post-it note to Secret/NF Extremely sensitive classified material… Knock Knock… You were screwed long ago and you didn’t feel a thing… No need for a towel there is it… More so for who wasn’t doing their jobs and when the bottom line is looked at it’s those in the executive branch who should be responsible for not seeing holes right in front of their own eyes… So what ever government is embarrassed by whom ever.. STOP pointing fingers and just accept that you just got served.. Be proactive with how you deal with the problem and NOT destructive like what is being done with wiki… For the US that’s your own dam fault for being idiots and that goes for all the other countries as well…

    All hypothetically speaking of course…

    Ironically it’s ALL 110% PLAUSABLE…(With a giggle) Isn’t it GHWB Jr.<– You opened those gates… If it's ok for the government to do it, it's ok for everyone else to do it too… Since we are all human…Right? If any government cares to prove me or the thousands of secret/known computers experts wrong.. By all means I'm all ears.. & so would the rest of the world I'm betting… Anytime Anyday…

  9. DXer said

    Consider the arrival at the New York airport of Al-Marri, sent by KSM for a biochem attack and communicating by code with him through draft emails in a shared account.

    A court opinion gave some background:

    “The Rapp Declaration asserts that al-Marri: (1) is “closely associated with al Qaeda, an international terrorist organization with which the United States is at war”; (2) trained at an al Qaeda terrorist training camp in Afghanistan sometime between 1996 and 1998; (3) in the summer of 2001, was introduced to Osama Bin Laden by Khalid Shaykh Muhammed; (4) at that time, volunteered for a “martyr mission” on behalf of al Qaeda; (5) was ordered to enter the United States sometime before September 11, 2001, to serve as a “sleeper agent” to facilitate terrorist activities and explore disrupting this country’s financial system through computer hacking; (6) in the summer of 2001, met with terrorist financier Mustafa Ahmed Al-Hawsawi, who gave al-Marri money, including funds to buy a laptop; (7) gathered technical information about poisonous chemicals on [*166] his laptop; (8) undertook efforts to obtain false identification, credit cards, and banking information, including stolen credit card numbers; (9) communicated with known terrorists, including [**12] Khalid Shaykh Muhammed and Al-Hawsawi, by phone and email; and (10) saved information about jihad, the September 11th attacks, and Bin Laden on his laptop computer.”

    Al-Hawsawi had anthrax spraydrying documents on his laptop when he was captured in March 2003. When Al-Marri passed through customs with his laptop, whatever rule applies under the precedent would have applied to the search of his laptop. In the case of Moussaoui, DOJ HQ felt that FISA did not permit a search in Minneaspolis. Through faulty intelligence analysis, they did not appreciate that his known association with Khattab, without more, would have permitted authorities to access the laptop and, for example, find the letter from Yazid Sufaat, find the cropdusting materials, and find the emails to the greenlab@usa.com account that they later accessed on 9/18/2001.
    Although FBI Director Mueller does not think that 9/11 would have been avoided, others disagree.

    All we can do, in a nation of laws, is follow the rule of law and do our very best at intelligence analysis by mastery of the documents. Here, there is still the question of ascertaining the law applicable to the Boston airport and then applying it to the facts.

    Above all, we need to avoid putting the FBI in a position of damned if they do, and damned if they don’t. Absent evidence to the contrary, we should always infer another’s positive intent and assume that the top flight government lawyers who advise the border agents applied the law applicable in Boston in good faith.

    • Lew Weinstein said

      DXer said … Absent evidence to the contrary, we should always infer another’s positive intent and assume that the top flight government lawyers who advise the border agents applied the law applicable in Boston in good faith.

      LMW … we do indeed start in different places.

  10. DXer said

    For example, if he were to arrive in San Francisco, under the Ninth Circuit decision cited he would face dim prospects in a legal challenge brought in federal district court in California. United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) (“[R]easonable suspicion is not needed [*2] for customs officials to search a laptop or other personal electronic storage devices at the border”.).

    UNITED STATES OF AMERICA, Plaintiff – Appellee v. MICHAEL SCOTT MCAULEY, Defendant – Appellant

    No. 10-50470 Summary Calendar

    UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

    2011 U.S. App. LEXIS 6801

    March 31, 2011, Filed

    NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

    PRIOR HISTORY: [*1]

    Appeal from the United States District Court for the Western District of Texas. USDC No. 2:07-CR-786-1.
    United States v. McAuley, 563 F. Supp. 2d 672, 2008 U.S. Dist. LEXIS 44688 (W.D. Tex., 2008)

    DISPOSITION: AFFIRMED.

    CORE TERMS: border, warrantless search, clear error, checkpoint, consented

    COUNSEL: For UNITED STATES OF AMERICA, Plaintiff – Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX.

    For MICHAEL SCOTT MCAULEY, Defendant – Appellant: Albert A. Flores, Law Office of Albert A. Flores, San Antonio, TX.

    JUDGES: Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

    OPINION

    PER CURIAM:*

    – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

    – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
    Michael Scott McAuley pleaded guilty conditionally to transporting child pornography and was sentenced, inter alia, to 188 months’ imprisonment. He reserved his right to appeal the denial of his motion to suppress evidence discovered on his external computer hard drive during a warrantless search at a border checkpoint.

    Arguably, because this search occurred at a border checkpoint, McAuley’s consent was not required to conduct the warrantless search. See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) (“[R]easonable suspicion is not needed [*2] for customs officials to search a laptop or other personal electronic storage devices at the border”.). In the light of the following, however, we need not decide whether the search was constitutionally permissible as a routine search under the border-search doctrine.

    • DXer said

      Under the Ninth Circuit approach, a court will consider any seizure on a case-by-case so as to consider whether the length that the equipment was kept was justified by the complexity of searching it. In case where files were encrypted, a court likely would take that into account and allow the government a reasonable time in which to access the files.

      Note that in this line of cases, no threat to airline safety is posed. But precedent in the Ninth Circuit only governs the District Courts within that district. Elsewhere, absent appellate leve precedent, it is merely influential. A District Court in Boston, for example, is not obligated to follow Ninth Circuit precedent if it deems it unpersuasive. That leaves the question as to what the precedent is within the First Circuit that includes Boston.

      UNITED STATES OF AMERICA, Plaintiff-Appellant, v. HOWARD WESLEY COTTERMAN, Defendant-Appellee.

      No. 09-10139

      UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

      2011 U.S. App. LEXIS 6483

      September 9, 2010, Argued and Submitted, San Francisco, California
      March 30, 2011, Filed

      PRIOR HISTORY: [*1]
      Appeal from the United States District Court for the District of Arizona. D.C. No. 4:07-cr-01207-RCC-CRP-1. Raner C. Collins, District Judge, Presiding.
      United States v. Cotterman, 2009 U.S. Dist. LEXIS 14300 (D. Ariz., Feb. 23, 2009)

      DISPOSITION: REVERSED and REMANDED.

      CASE SUMMARY

      PROCEDURAL POSTURE: Defendant was indicted for production of child pornography, transportation and shipping of child pornography, receipt of child pornography, possession of child pornography, importation of obscene material, transportation of obscene material, and unlawful flight to avoid prosecution. The United States District Court for the District of Arizona granted defendant’s motion to suppress evidence under the Fourth Amendment. The Government appealed.

      OVERVIEW: Based on an alert regarding defendant for officers to be on the lookout for child pornography, border agents detained two laptop computers and three digital cameras when defendant and his wife drove from Mexico to Arizona. Many of defendant’s files were password protected. The laptops and a camera were taken to a forensic computer laboratory 170 miles away. About two days later, child pornography was discovered on defendant’s laptop. The appellate court determined that suppression was not warranted because (1) the border search doctrine applied and the Government did not need to categorically demonstrate some heightened suspicion to transport property to a secondary site for inspection, (2) the reasonableness of the search was better analyzed on a case-by-case basis to determine whether the scope or duration of the intrusion was constitutionally unreasonable, and (3) the Government’s conduct was not so egregious as to render the search unreasonable since the property was sufficiently complex to permit its relocation, and the two-day seizure of the property was reasonable.

      OUTCOME: The appellate court reversed the district court’s suppression order and remanded the case to the district court for further proceedings.

      CORE TERMS: border, border search, laptop, suspicion, forensic, traveler, seizure, reasonable suspicion, child pornography, contraband, offensive, searched, customs, searches and seizures, particularized, deprivation, inspection, detention, privacy, drive, electronic, sovereign’s, luggage, camera, transport, seize, site, secondary, password, invasive

      LexisNexis® Headnotes Hide Headnotes

      Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
      Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Border Searches
      HN1 The court finds no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry—and not yet admitted or released from the sovereign’s control—to be transported to a secondary site for adequate inspection. The border search doctrine is not so rigid as to require the United States to equip every entry point—no matter how desolate or infrequently traveled—with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring within the borders or be otherwise precluded from exercising its right to protect the nation absent some heightened suspicion. Still, the line the court draws stops far short of “anything goes” at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, the court continues to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.

      • DXer said

        If he were to arrive at LaGuardia, the decision in U.S. v. Irving, 452 F. 3d 110 (2d Cir. 2004) might be the decision that provides relevant guidance:

        “The last question we must consider in determining whether the district court erred in denying Irving’s suppression motion is whether the search of the diskettes and film in his luggage was a valid search. HN17A border search is valid under the Fourth Amendment, even if non-routine, if it is supported by reasonable suspicion. See Asbury, 586 F.2d at 975-76. As noted above, the question of reasonableness must be determined by balancing the level of intrusion with the level of suspicion. See United States v. Price, 599 F.2d 494, 499 (2d Cir. 1979) (“[T]he reasonableness of a particular stop must be gauged by comparing the degree of the intrusion with the grounds for the suspicion that intrusion is called [**35] for.”). A reasonable suspicion inquiry simply considers, after taking into account all the facts of a particular case, “whether the border official ha[d] a reasonable basis on which to conduct the search.” Asbury, 586 F.2d at 976. We have pointed to a number of factors that courts may consider in making the reasonable suspicion determination, including unusual conduct of the defendant, discovery of incriminating matter during routine searches, computerized information showing propensity to commit relevant crimes, or a suspicious itinerary. Id. at 976-77.

        Here the Customs agents found both the 3.5 inch computer diskettes and the undeveloped film after they collected the following information: Irving was a convicted pedophile; he was the subject of criminal investigation; he had been to Mexico; he claimed that he visited an orphanage while in Mexico; and his luggage contained children’s books and drawings that appeared to be drawn by children. These all constitute specific and articulable facts, and thus may serve as the basis of reasonable suspicion. See Price, 599 F.2d at 500. Taking all this information into account and [**36] considering the relevant Asbury factors noted above, we find the Customs agents had a reasonable basis for examining the diskettes and the undeveloped film. See Asbury, 586 F.2d at 976. This information is certainly sufficient to justify the search of items found in Irving’s luggage. Because these searches were supported by reasonable suspicion, we need not determine whether they were routine or non-routine. The district court properly denied Irving’s motion to suppress with respect to the Customs officials’ examination of the diskettes and film found in his luggage.”

      • Lew Weinstein said

        DXer cites a case where “two-day seizure of the property was reasonable”

        vs the 7 weeks David House’s computer was kept !!! … it will be interesting to see how this case comes out …

        Who is David House and what did he do to “justify” such invasive measures? Apparently, he helped set up the Bradley Manning Support Network, a group raising funds for Manning’s legal defense. Glenn Greenwald has an account of House being harassed at the border, like others associated in one way or another with Wikileaks.

  11. DXer said

    Isn’t it instead following the rule of law? Has the ACLU at any time has been free to seek to challenge the application of the rule of law by declaratory action? It seems neither arbitrary nor arrogant but instead seems a routine administration of existing law.

    “Currently, the search of electronic devices can be made without reasonable suspicion or a warrant.

    Inspections at border crossings, airports and cruise-ship terminals have historically been given exemption from the Fourth Amendment’s basic requirements that searches and seizures be conducted reasonably, and pursuant to a warrant based on probable cause. For example, when entering the United States through a port of entry like San Ysidro, your car is subject to search without the need for a warrant. The same is true for luggage in an international airport terminal.

    CBP also said that less than 1 percent of travelers entering the country are subject to laptop computer searches.”

    LW, have they ever taken your laptop in to the other room out of your sight? This likely is the routine application of decades-old precedent. But I would have to pull the authority deemed controlling for you.

    http://www.kpbs.org/news/2011/may/18/no-warrant-needed-search-laptops-phones-border-cro/

    In the Amerithrax case, if the government told Dr. Ivins that Dr. Heine had accused him of the crime, thus throwing him understandably into a rage, then there may be a question whether that would be deemed to fall within US Supreme Court precedent permitting deception in interrogation. But I have not researched the question.

    In light of the legal precedent, are travelers not on notice that they should leave their computers at home if they don’t want them searched? Especially now in light of the ACLU’s lawsuit?

    • Lew Weinstein said

      DXer …the search of electronic devices can be made without reasonable suspicion or a warrant

      LMW … OBJECTION !!! Certainly computers may be searched to see if they are a danger to an upcoming flight. But this does not apply to documents that may be on the computer. If law enforcement wants to search such documents, they must first get a search warrant after proving to a judge why they need it. To take a computer and keep it for 7 weeks, or even 7 minutes, without any reasonable suspicion, is an unwarranted intrusion on an individual’s privacy. FYI … My laptops have never been taken away out of my sight. To suggest that the government has a right to search the contents of anyone’s computer is a frightening prospect, one which I hope is still illegal in the “land of the free.”

      • DXer said

        House also went on a message board to answer questions about the suit and said, among other things, that the State Department and Army had offered to bribe him to give them tips on Boston-area hackers. Are government rewards to report violations of crime a bad thing now?

        Mr. House wrote:

        “If the government believed I had something criminal on my laptop, I woud hope they would obtain a warrant or issue a subpoena. The way the State went about this seizure may say a lot about its role as a fishing expedition”

        But he was aware of the existing law having previously had his computer seized at the Chicago border. He knew at the time of the search in Boston that

        “I’m unable to travel internationally without the threat of seizure to my electronics.”

        And this does not relate to safety at the flight. It is regularly applied more broadly than that, isn’t it? It is just currently the “rule of law” followed.

        And so this is not a time of indignation — or tying his case to the Ivins case without first a briefing of the law. It is a time to search the controlling law to see if the government correctly applied it. You appear to be under the unfounded impression that it relates to the safety of the flight and yet cite nothing to support that view.

        And if they did then they apply the rule of law — which is a good thing. This blog should stand for the rule of law above all else.

        Now if it turns out that the controlling District Court law favors the government on the question, by all means, the ACLU can litigate the question and take it to the First Circuit Court of Appeals if it disagrees on the question of policy.

        And if the First Circuit Court of Appeals favors the government’s position, the ACLU can take the issue to the United States Supreme Court.

        It seems like the sort of question they might be inclined to take — given it involves issue of importance that recurs frequently and occurs at national borders.

        Moreover, it seems that such issues relating to computers are especially important given how vulnerable the United States is said to be given its dependence on computers. (Ironically, the US is far more vulnerable than, say, North Korea, which has a much less dependence on computers. Richard Clarke has a book out on the subject.

        So let’s see posted the law in the District of Massachusetts and the First Circuit Court of Appeals. (I presume there is no applicable law in the United States Supreme Court or else I doubt the ACLU would have brought the suit.)

  12. Lew Weinstein said

    Just for the record, neither I nor this blog advocates non-payment of taxes or a new form of government. The U.S. government, though far from perfect, is in my view the best form of government yet devised, and it contains all of the constitutional and political means to reform itself and its policies. Democracy is messy and often frustrating, but it sure beats any other system I ever heard of.

  13. Zicon said

    Like the Federal government is going to burn or delete info that they have from his laptop.. Now that is funny.. lol I’d bet that is financial reports of payable/recievables get out from one to all biological military bases we just mght get more answers answered… Has there been any formal request for those yet or via FOIA’s for any and all Finances??? If any government isn’t or hasn’t done or doing anything wrong, why withold important Intel from the right people and esp. the public that has “EVERY” right to know, since our taxes have paid for everything.. What if everyone in the entire US just stopped paying taxes all together>> Better yet what if a new form of government starts that can challenge the extremely unsecure play land we have now that has zero accountability for those in high power positions…
    Fyi I did get the joke lol…It’s mutual respect…

    • Zicon said

      This was a hypothetical… Just never say never, as many that are still alive today that were born in the 20’s-30’s that can say those exact same words dealing with technology advancements etc. etc.
      But in response to LMW I believe it can be a lot less messy if everyone that run this country are all on the same page.. Which can be clearly seen they are not… Million Dollar question is… WHY NOT?

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