Judge limits DHS laptop border searches

[Dave Farber <dfarber () me com>]

Begin forwarded message:

> From: Richard Forno <rforno () infowarrior org>
> Date: June 10, 2010 8:08:40 PM EDT
> To: Undisclosed-recipients: <>;
> Cc: Farber Dave <dave () farber net>
> Subject: Judge limits DHS laptop border searches

> June 10, 2010 4:00 AM PDT
> Judge limits DHS laptop border searches
>
> by Declan McCullagh
>
> http://news.cnet.com/8301-13578_3-20007315-38.html
>
> A federal judge has ruled that border agents cannot seize a traveler's laptop, keep in locked up for months, and 
> examine it for contraband files without a warrant half a year later.
>
> U.S. District Judge Jeffrey White in the Northern District of California rejected the Obama administration's argument 
> that no warrant was necessary to look through the electronic files of an American citizen who was returning home from 
> a trip to South Korea.
>
> "The court concludes that June search required a warrant," White ruled on June 2, referring to a search of Andrew 
> Hanson's computer that took place a year ago. Hanson arrived San Francisco International Airport in January 2009.
>
> The Justice Department invoked a novel argument--which White dubbed "unpersuasive"--claiming that while Hanson was 
> able to enter the country, his laptop remained in a kind of legal limbo where the Bill of Rights did not apply. (The 
> Fourth Amendment generally requires a warrant for searches.)
>
> "Until merchandise has cleared customs, it may not enter the United States," assistant U.S. attorney Owen Martikan 
> argued. "The laptop never cleared customs and was maintained in government custody until it was searched..."
>
> This is not exactly a new dispute: two years ago, the U.S. Department of Homeland Security's Customs and Border 
> Protection announced that it reserves the right to seize for an indefinite period of time any laptops that are taken 
> across the border.
>
> Last year, the department reiterated that claim, saying laptops and electronic gadgetry can still be seized and held 
> indefinitely. There's no requirement that they be returned to their owners after even six months or a year has 
> passed, though supervisory approval is required if they're held for more than 15 days. The complete contents of a 
> hard drive or memory card can be perused at length for evidence of lawbreaking of any kind, even if it's underpaying 
> taxes or not paying parking tickets.
>
> In response, Sen. Russ Feingold, a Wisconsin Democrat, introduced a bill that would require border agents to obtain a 
> warrant or court order to hold such a device for more than 24 hours.
>
> Customs agents say that after Hanson was randomly selected for a secondary baggage examination, he became nervous. 
> That led Customs agent Sheryl Edwards to ask for an examination of Hanson's laptop, a digital camera with memory 
> card, two CD-ROMs, and two DVDs.
>
> That examination, customs agents say, showed one incriminating photograph: an adolescent girl covered with mud, 
> standing on a beach, and not wearing any clothes. Edwards concluded that the image was illegal; Hanson was charged 
> with transportation and possession of child pornography in September 2009. He has pleaded not guilty.
>
> For his part, Eric Chase, an attorney representing Hanson, acknowledged that an immediate search conducted at the 
> border without a warrant is permissible. But police perusal of a hard drive six months later definitely is not, he 
> said when asking the court to toss out the results of the June 2009 search.
>
> "As applied to border searches generally, agents, after taking their permissible look while at the border crossing 
> itself, would be free to 'detain' electronic devices and conduct further examinations whenever and wherever they 
> pleased as justified solely because their 'peek' exposed the computer's contents to law enforcement," Chase wrote. 
>
> Customs agents also searched Hanson's laptop three times in February 2009, with the first search taking place about a 
> week after he entered the country and turning up no evidence of child pornography. The second and third searches 
> allegedly did. White allowed the results of those searches to be used as evidence, saying they were "justified as an 
> extended border search supported by reasonable suspicion."
>
> A 2006 Police Blotter article reported that the Ninth Circuit, which sets precedents that are binding on San 
> Francisco federal courts, ruled that random searches of laptops at the border without a search warrant is 
> permissible. But the Ninth Circuit did not address what happens if the search takes place a month or half a year 
> later.
>
> Excerpt from court ruling:
>
> The government argues that the February search was justified as an extended border search supported by reasonable 
> suspicion...In contrast to a search conducted at the border, or its functional equivalent, an extended border search 
> must be supported by "'reasonable suspicion' that the subject of the search was involved in criminal activity, rather 
> than simply mere suspicion or no suspicion." In order to determine whether the search was supported by reasonable 
> suspicion, the court examines the totality of the circumstances, such as the time and distance elapsed, whether there 
> was a lapse in surveillance, and the diligence of law enforcement.
>
> Because the agents did not find contraband while the laptop was located at the border and, in light of the time and 
> distance that elapsed before the search continued, the court concluded that the search should be analyzed as an 
> extended border search. Given the passage of time between the January and February searches and the fact that the 
> February search was not conduct(ed) at the border, or its functional equivalent, the court concludes that the 
> February search should be analyzed under the extended border search doctrine and must be justified by reasonable 
> suspicion.
>
> When the court examines the totality of the circumstances, including Officer Edwards' description of the Image, her 
> observations that Hanson appeared nervous, the discovery of the condoms and the male-enhancement pills, and Hanson's 
> statement that he had been working with children, the court concludes that the government has met its burden to show 
> the February search was supported by reasonable suspicion. Accordingly, Hanson's motion is DENIED IN PART on this 
> basis...
>
> The government also argues that because Officer Edwards properly seized the laptop, and because the laptop remained 
> in law enforcement custody, she was entitled to conduct a more thorough search at a later time. However, the cases on 
> which the government relies for this argument address the right to conduct a more thorough search of a container as a 
> search incident to a valid arrest, another recognized exception to the warrant requirement... Hanson was not arrested 
> on January 27, 2009, and for that reason the court finds the government's reliance on the "search incident to a valid 
> arrest" line of cases to be inapposite. Accordingly, because the court concludes that June search required a warrant, 
> and because it is undisputed that the search was conducted without a warrant, Hanson's motion is GRANTED IN PART on 
> this basis.
>
> Declan McCullagh has covered the intersection of politics and technology for over a decade. E-mail Declan.



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