July 26, 2006 5:06 PM PDT

Police blotter: Laptop border searches OK'd

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"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: A business traveler protests the warrantless search and seizure of his laptop by Homeland Security at the U.S.-Canada border.

When: 9th Circuit Court of Appeals rules on July 24.

Outcome: Three-judge panel unanimously says that border police may conduct random searches of laptops without search warrants or probable cause. These searches can include seizing the laptop and subjecting it to extensive forensic analysis.

What happened, according to court documents:

In January 2004, Stuart Romm traveled to Las Vegas to attend a training seminar for his new employer. Then, on Feb. 1, Romm continued the business trip by boarding a flight to Kelowna, British Columbia.

Romm was denied entry by the Canadian authorities because of his criminal history. When he returned to the Seattle-Tacoma airport, he was interviewed by two agents of Homeland Security's Immigration and Customs Enforcement division.

They asked to search his laptop, and Romm agreed. Agent Camille Sugrue would later testify that she used the "EnCase" software to do a forensic analysis of Romm's hard drive.

That analysis and a subsequent one found some 42 child pornography images, which had been present in the cache used by Romm's Web browser and then deleted. But because in most operating systems, only the directory entry is removed when a file is "deleted," the forensic analysis was able to recover the actual files.

During the trial, Romm's attorney asked that the evidence from the border search be suppressed. The trial judge disagreed. Romm was eventually sentenced to two concurrent terms of 10 and 15 years for knowingly receiving and knowingly possessing child pornography.

The 9th Circuit refused to overturn his conviction, ruling that American citizens effectively enjoy no right to privacy when stopped at the border.

"We hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine," wrote Judge Carlos Bea. Joining him in the decision were Judges David Thompson and Betty Fletcher.

Bea cited the 1985 case of U.S. v. Montoya de Hernandez, in which a woman arriving in Los Angeles from Columbia was detained. Police believed she had swallowed balloons filled with cocaine, even though the court said they had no "clear indication" of it and did not have probable cause to search her.

Nevertheless, the Supreme Court said police could rectally examine De Hernandez because it was a border crossing and, essentially, anything goes. (The rectal examination, by the way, did find 88 balloons filled with cocaine that had been smuggled in her alimentary canal.)

Justices William Brennan and Thurgood Marshall dissented. They said the situation De Hernandez experienced had "the hallmark of a police state."

"To be sure, the court today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches," Brennan wrote. "If this is the law as a general matter, I believe it is time that we re-examine its foundations."

But Brennan and Marshall were outvoted by their fellow justices, who ruled that the drug war trumped privacy, citing a "veritable national crisis in law enforcement caused by smuggling of illicit narcotics." Today their decision means that laptop-toting travelers should expect no privacy either.

As an aside, a report last year from a U.S.-based marijuana activist says U.S. border guards looked through her digital camera snapshots and likely browsed through her laptop's contents. A London-based correspondent for The Economist magazine once reported similar firsthand experiences, and a 1998 article in The New York Times described how British customs scan laptops for sexual material. Here are some tips on using encryption to protect your privacy.

Excerpt from the court's opinion (Click here for PDF):

"First, we address whether the forensic analysis of Romm's laptop falls under the border search exception to the warrant requirement...Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant. For Fourth Amendment purposes, an international airport terminal is the "functional equivalent" of a border. Thus, passengers deplaning from an international flight are subject to routine border searches.

Romm argues he was not subject to a warrantless border search because he never legally crossed the U.S.-Canada border. We have held the government must be reasonably certain that the object of a border search has crossed the border to conduct a valid border search....In all these cases, however, the issue was whether the person searched had physically crossed the border. There is no authority for the proposition that a person who fails to obtain legal entry at his destination may freely re-enter the United States; to the contrary, he or she may be searched just like any other person crossing the border.

Nor will we carve out an "official restraint" exception to the border search doctrine, as Romm advocates. We assume for the sake of argument that a person who, like Romm, is detained abroad has no opportunity to obtain foreign contraband. Even so, the border search doctrine is not limited to those cases where the searching officers have reason to suspect the entrant may be carrying foreign contraband. Instead, 'searches made at the border...are reasonable simply by virtue of the fact that they occur at the border.' Thus, the routine border search of Romm's laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under "official restraint."

In sum, we hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine."

See more CNET content tagged:
Police Blotter, analysis, homeland security, border, Judge

31 comments

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An outrageous and dangerous precedent
The notion that Americans have no right to privacy and no right to be free from search and seizure simply because they are crossing the border is OUTRAGEOUS. How can this repellant and extremely dangerous precedent be justified? The Constitution guarantees all Americans the right to be free from unwarranted searches and seizures. This principle should apply EVERYWHERE -- it is a fundamental individual right. As soon as it is accepted that being free from search and seizure is not a right in one context (entering the country) it will only be a matter of very short time before it starts spreading, virally, to all manner of other contexts, for all kinds of alleged important reasons.
Posted by baisa (126 comments )
Reply Link Flag
ditto
You're exactly right. Now that the government has claimed it's ok to unlawfully search a person at the border. Next thing you know they'll say it's ok to go into your home and search it because the DHS felt like it.

Granted, I understand warrantless searching of non-citizens....but OUR OWN? Since when did the Constitution suddenly not apply to a citizen of the United States? The fact of the matter is, despite the fact that the gentleman in this case did have contraband on him. That should NOT negate the fact that his 4th amendment rights were egregiously violated.

I'll tell you, it's a terrible shame that these days being a facist pig is less of a threat to one's political aspirations than not being concered about "national security". Well, good thing we can still burn flags I guess.
Posted by mr3vil (42 comments )
Link Flag
This is not a precedent at all
When I went into Canada 15 years ago, three times, when I returned, I was subject to being searched by US Customs all three times. I couldn't "opt out"; if they wanted to search it was clear they had the right.

When I went to Mexico 6 years ago, when I returned, I was subject to search by US Customs when I returned. I couldn't "opt out"; if they wanted to search it was clear they had the right.

Reportedly, in this case, Canadadian authorities searched his laptop, because he had a criminal record, found the illegal materials, then called US Customs. The US Customs search was _not_ unwarranted!

Even if you want to protest the fact that "random" searches were considered acceptable by the judges - ever hear of police roadblocks? This isn't a new practice!

Where is the precedent here?
Posted by cerdoE (2 comments )
Link Flag
Re: An outrageous and dangerous precedent
Why is this so dangerous?

If a police officer pulls you over they can search you, if you go to
the airport you get searched. What's the difference?

You go to a border, and you get searched.

Heck, when I cross from Arizona to California and back, I get
searched (if the agents choose) for various fruits and/or
vegetables.

What's so different about this from any other searches? Or
perhaps you feel we shouldn't be searched anywhere? That
would at least be consistent.

What it comes down to is it's no different from any other type of
search that law enforcement is currently allowed to perform.

I'll say what I've said before; it's only a major ordeal if somebody
is breaking the law.

Charles R. Whealton
Charles Whealton @ pleasedontspam.com
Posted by chuck_whealton (521 comments )
Link Flag
We The Sheeple....
I love how everyone gets so outraged after it's too late. I was called "Chicken Little" when I tried to warn people 10-15 years ago. Enjoy your loss of rights, the sheeple mandated it!
Posted by (16 comments )
Reply Link Flag
Real Truth here people...CNUT bites
Tell the WHOLE truth CNET!

Excerpt from Fark.

THERE IS A HELL OF LOT MORE TO THIS STORY. I can't believe Cnet left the most crucial part of the story out, namely that Canada Customs examined his computer before refusing him entry into the Canada then alerted U.S. authorities on his return trip to the United States. When Canada Customs examined his computer they discovered several known child pornography web sites in his browser history and passed that information to American law enforcement. THAT is what prompted the authorities to check his computer. It wasn't just some agent acting on a whim.
Posted by lamer111 (1 comment )
Reply Link Flag
The "real truth"
If you read the opinion more carefully, the 9th Circuit's decision did not turn on whether or not the Canadians tipped off the Feds. Put another way, it didn't matter:
"In sum, we hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine."

Also I'm not sure that namecalling is really all that useful or productive here.
Posted by declan00 (848 comments )
Link Flag
If that were true (they received an alert from Canadian officials)
Why the hell wouldn't they have gotten a warrent (they had good cause - the tip from Canadian Officials). This way they would never have had worry that the evidence could be tossed from court.
Posted by Sir Geek (114 comments )
Link Flag
CNET covered the decision points
Read the decision before you blast CNET - the judges did not give much importance to the fact that Canadian authorities may have discovered and tipped the US on this matter. The decision made it clear that the it did not depend (or even consider) this fact. That makes CNET's coverage more accurate than if it had filled the story with (legally) irrelavent information.
Posted by battlefella (21 comments )
Link Flag
doesn't matter
It's not relevant in terms of the law.
Posted by declan00 (848 comments )
Link Flag
Diary/notebook border search
Wednesday, May 3, 2006 - El Progresso, Mexico/TX border
crossing in vehicle - self and another US citizen - Extensive search
of vehicle - Agent paged through my friend's diary/notebook and
envelopes containing mail he had received - I asked "are you
authorized to search personal notes?" - (bruque) "Yes." - 1-1/2
hour delay - nothing found.
Posted by George Moss (1 comment )
Reply Link Flag
Border crossings are exceptions
I'm big on civil liberties, the one place I understand and never question is crossing the border. I had a difficult time getting out of Japan recently, but the difference is the Japanese can be strong and demanding without being rude. American Law Enforcement creates hostility with their poor people skills. As we watch our civilization collapse around us, I say it's worth losing a few lives to protect our way of life - or to put it another way if we lose a planeload of Americans but retain the integrity of our form of government we cannot lose. I'm not sure we want to admit it, but null has played George Bush like a Cheap fiddle all along. All the stress of the last few years has been caused by a bunch of frighted county club politicians get paid to scare everyone then reassure them that they are on the job keeping them null.

Just 15 years ago we were all lamenting at how judges loved criminals and were letting them off with love taps. Now we have the highest incarceration rate in the world, higher then the USSR at it's zenith, and judges pass out 30 year sentences over the stupidest infractions - something is wrong with our system
Posted by andocrates (10 comments )
Link Flag
Can they copy data from your drive?
Can they copy data from your drive, or image your hardrive, without your consent?

(I probably wouldn't mind if they took a quick manual look at my laptop while I observed, but I would really dislike having my personal data copied for later scrutiny or distribution. That seems like theft to me.)
Posted by (3 comments )
Reply Link Flag
welcome to police state USA!
I don't care about precedent, it's just plain wrong for customs to be able to search your entire laptop just because they want to, which the courts said is ok.

It's getting bad. Read this story:
<a class="jive-link-external" href="http://www.nbc10.com/news/9574663/detail.html" target="_newWindow">http://www.nbc10.com/news/9574663/detail.html</a>
Posted by chris_d (195 comments )
Reply Link Flag
Exactly why precedents are so dangerous
The previous poster pointed out situations where unwarranted searches and siezures have already been accepted.

That this kind of mentality is probably quite prevalent, is PRECISELY why bad precedents are so dangerous!

It is ok for airlines to request reasonable examinations of luggage and one's person prior to boarding an airplane, for safety and security reasons. One can refuse by not flying, and this is a private arrangement. But the border is another matter altogether. What is interesting, is that some of the main reasons for searching people at borders are the prohibition against drugs, which itself is a violation of individual rights. All these violations of rights just necessitate and justify further violations of rights.
Posted by baisa (126 comments )
Reply Link Flag
What if your child was in those photos?
Were my child the one contained in those photos I would certainly feel glad they nabbed this fellow. We can't expect law enforcement to do their job if we take away their tools. They have a difficult enough job!
Posted by rodolfo76 (1 comment )
Reply Link Flag
Do you have a point?
Warrantly searches are unconstitutional, period. IT doesn't matter if the person being searched is, in fact, guilty or innocent.
Posted by qwerty75 (1164 comments )
Link Flag
Nice attempt at EMOTIONAL-BLACKMAIL...
But... we ARE NOT talking about an appropriate-approach to catching the incredibly small percentage of people who are actually guilty, of any serious-offense...

Whether, we are personally involved, or not...

What this IS about, is allowing the Government to treat EVERY AMERICAN like a CONVICTED CRIMINAL, on the off-chance that, maybe, SOME ACTUAL CRIMINALS might be stupid enough to get caught. And, all WE, as Americans, have to do is give up our MOST BASIC RIGHTS, and accept living in a TOTALITARIAN POLICE-STATE, "...for our own good".

I think most Americans, at this point, are SICK of the ridiculous, and tired, statement that "Law-Enforcement" constantly needs, ever more, powerful "tools", ...in other words, THEY MUST BE ALLOWED TO SPY ON EVERYBODY (virtually without restraint) in order for (we) Americans "...to live in safety".

Frankly, that is the same, infuriatingly-sad, argument that EVERY DICTATOR, in history, has used to justify their criminal-oppressions of every basic human-right.

In short, when "probable cause", "due process", and "Constitutional Rights" are no longer viable necessities, ...then America itself is DEAD, and "..We The People", no longer have a "...legitimate-government".

But, maybe, that is EXACTLY what some here, are promoting...
Posted by Had_to_be_said (384 comments )
Link Flag
Give back my freedom
I care for and monitor my own children. I do not want the government or your "help" protecting my family.
It is brainless fear mongering statements like this that will cost us our few remaining civil liberties. My God, I can't believe what's happened to this country in the last 30 years.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Ben Franklin
I will move out of this evolving police state soon. "Give be liberty or give me death."
Posted by sotelojohn (1 comment )
Link Flag
Are you for real?
The police have so much power they are drunk from it. Wow, talk about living in a bubble. And as was already noted this child was likely driven to the photo shoot by her mom, they call everything C pornography even when there is no sex or even nudity involved. Jon Benet Ramsey's photo shoot is legally child pornography even though she was fully dressed. 20 years in prison for that stuff? This is what is so wrong and why some of us are upset.
Posted by andocrates (10 comments )
Link Flag
Border search
If it means a safer America. I am all for it.
Posted by angeles75 (2 comments )
Reply Link Flag
sheesh
Really? Are you that scared and shortsighted? It does not make us safer, but it makes us less free.

Giving up your rights that millions have fought for just so you can 'feel safe' is the very definition of cowardice.
Posted by qwerty75 (1164 comments )
Link Flag
Rights?
I don't recall anybody fighting (much less dying) for the "right" to cross borders without thorough scrutiny since Genghis Khan's last great barnstorming tour ...
Posted by walwebster (185 comments )
Reply Link Flag
Read the bill of rights someday soon.
Pay extra close attention to the 4th amendment, but others apply in part as well.
Posted by qwerty75 (1164 comments )
Link Flag
I would rather drop my Pants!
WOW!!! Our Government is Out of control, Totally unacceptable - I will drop my pants and let you violate me physically before I will let you take my laptop or my digital data &gt; that is my brain, my sanity . . . which is the only thing more important than my freedom &#38; privacy!
Posted by AlanZusman (1 comment )
Reply Link Flag
WTF?!
You're a sick man.
Posted by TuxedoBond (9 comments )
Link Flag
After looking at this guy's rap sheet it's no wonder, <a class="jive-link-external" href="http://criminalsearches.com/details.aspx?id=886298" target="_newWindow">http://criminalsearches.com/details.aspx?id=886298</a> . He wasn't allowed into Canada because he's a child rapist and they find known child porn addresses in his browser history. The guy is a scumbag and I don't have a problem with felonious pedo-sex offenders being subject to extra searches. The scary part is that the Gov't doesn't need any reasonable suspicion to take all of our digital info. The argument has been made that ICE agents can search a photo album, address book, or envelopes full of mail so why shouldn't they be able to search their digital counterparts? If they were only glancing through a hard drive for anything suspicious that would be one thing, and even then I wouldn't be comfortable. But they are copying all of your information and adding it to your FBI file. When the customs agent looks though your photo album or postal mail he's not going in the back room and making a photo-copy of every page. I don't think that all of my written communications (e-mail, TXT messages, IM history, Forum posts) should permanently be property of the Gov't just because I go visit friends in Canada for the weekend.
Posted by Amebix83 (1 comment )
Reply Link Flag
I guess I will be encrypting and disassembling my laptop for any future boarder crossings. Thanks for the heads up!
Posted by gavan33 (3 comments )
Reply Link Flag
 

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