[Infowarrior] - Police Blotter: Laptop border searches OK'd

[Richard Forno]

Police Blotter: Laptop border searches OK'd

By Declan McCullagh
http://news.com.com/Police+Blotter+Laptop+border+searches+OKd/2100-1030_3-60
98939.html

Story last modified Wed Jul 26 18:12:18 PDT 2006

"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."