Feds Use Border Search Exception to Nab Pedophile:
Federal law enforcement officials have been using some recent Fourth Amendment caselaw to nab pedophiles who are traveling off to Thailand and other countries to engage in sexual activities with children. The strategy: using the Fourth Amendment's border exception to search through the suspect's computer and electronic storage devices.
Recent decisions by the Fifth Circuit, Fourth Circuit, and Ninth Circuit have approved computer searches under the "border exception" to the Fourth Amendment, which permits the suspicionless search of property entering and exiting the county. The feds are taking advantage of the fact that computers store so much information, including pictures, and are searching through suspects' computers at the airport before the suspects depart on (or when they arrive from) international flights. When the feds find child pornography on the computer or any storage devices held by the suspect, they arrest the suspect on child porn charges.
The latest example of this is an arrest at the Dulles Airport today of a professor at the University of Pennsylvania's Wharton School. The story is here, via the AP. Conveniently for the government, the suspected decided to fly in to an airport in the Fourth Circuit; the Fourth Circuit has already approved the use of the border search exception to search a computer.
Recent decisions by the Fifth Circuit, Fourth Circuit, and Ninth Circuit have approved computer searches under the "border exception" to the Fourth Amendment, which permits the suspicionless search of property entering and exiting the county. The feds are taking advantage of the fact that computers store so much information, including pictures, and are searching through suspects' computers at the airport before the suspects depart on (or when they arrive from) international flights. When the feds find child pornography on the computer or any storage devices held by the suspect, they arrest the suspect on child porn charges.
The latest example of this is an arrest at the Dulles Airport today of a professor at the University of Pennsylvania's Wharton School. The story is here, via the AP. Conveniently for the government, the suspected decided to fly in to an airport in the Fourth Circuit; the Fourth Circuit has already approved the use of the border search exception to search a computer.
I still have yet to understand Prof. Kerr's attraction to the argument that the NSA warrantless wiretapping program may be constitutional under the "border search" exception. Consider U.S. v. Ramsey, where the Court upheld inspections of international mail for actual contraband, but acknowledged the vast difference between searching for contraband and actually reading the contents of international communications. Listening to phone calls is clearly much more like reading international mail than it is like searching for contraband - unless you are inspecting international downloads for child pornography, I suppose.
[OK Comments: Steve, I don't think I'm "attracted" to the argument. Rather, I think that, depending on the facts, courts may find it a plausible argument. Note that in the Fourth Circuit's Ickes decision, applying the border search exception to a computer search, the court specifically states that there needs to be a broad border search exception to ensure that the government can catch terrorist plans crossing the border. The court rejects the notion that a narrower rule should apply when the government is searching things that are "expressive," saying that "particularly, in today's world," "national security interests may require uncovering terrorist communications" at the border that are expressive. Of course, the exception may or may not apply depending on the facts, and you may think the Ickes court was incorrect. But it seems to me that depending on the facts, the argument may be plausible.]
This story raises several policy questions, only two of which I will ask here:
(1) Should we treat all suspects equally, regardless of the alleged crime?
(2) If not, for which suspected crimes should we treat the accused "less equally"? (i.e. for which suspected crimes should we partially reduce the rights of the accused?)
The first question is easy to answer on its face, but my comment above implies that almost nobody agrees absolutely with such a policy.
I think the second question is just as easy to answer on its face. But do our concerns about the safety of society trump some rights of the accused? For those who believe the NSA wiretap program is unsound (as a matter of policy, not of constitutional law) -- are you worried that our government is reducing the rights of accused pedophiles?
Considering that with freely available software you can encrypt data in such a way that the US government would not be able to devote the resources to decrypting it on the chance that it contains paydirt.
As an added bonus, TrueCrypt allows you to create a special kind of encrypted archive that admits two passwords, a coerced one and a real one. Enter the coerced one and it shows one set of (presummably innocent) files while appearing to have been decrypted.
This is the best known defense against rubber-hose cryptanalysis and subpoenas.
FISA only applies if the target otherwise has a "reasonable expectation of privacy."
If a person has no reasonable expectation of privacy for the data in his or her computer when that computer if physically moved across the international border then why should a person assume that similar data carried by landline across the border has an expectation of privacy?
Does anyone here know if the courts have ruled on whether there is an expectation of privacy for data carried by landline across the border?
It doesn't have to be contraband for a person to wish it would remain private. This is doubly important when dealing with trade secrets, legal, accounting, and medical information, and things that are just plain not anyone else's business. Is everyone here comfortable that the government agents performing this work will always keep such information to themselves? Does everyone here have such high faith in the personal integrity of each and every government agent?
Data on someone's computer is just information. It isn't a tangible good, like a kilo of cocaine or a missile. In all likelihood, the information on this person's laptop probably first entered the country over an internet connection, not on an airplane. And in this ever smaller world, where people must of necessity cross borders with some frequency, this appears to be an opportunistic attempt at a general warrant for information not justified by the historic considerations for legalizing border searches.
Phone lines are, of course, a totally different ball of snakes.
The important detail is that your computer can be searched absenting any reasonable expectation that it contains evidence of any crime--or really any reasonable expectation you've committed a crime. This is really quite alarming, even if it has useful purposes.
Obviously the government has some ability to search imports as an aspect of the ability to impose import duties.
But I am surprised at least that the prohibition against export taxes does not preclude searches of out-going items, and further that searching even imports does not require at least a reasonable belief on behalf of the government that the object being searched contains items 'in-trade' rather than merely retained property such as the clothes you took on your trip--or your computer.
Similarly, if you poll whether the federal government should give the states money, the responses correlate INDIRECTLY (and very strongly) with the amount of money actualy given to those states.
I've spent my entire adult life in higher education, and I've found myself becoming more and more anti-academic with each passing (academic) year.
To be fair, the internal border between Virginia (4th Circuit) and DC (our nation's capital) is not exactly the Berlin Wall.
Furthermore, being male, am I now automatically suspect when travelling to some countries? Am I the only one feeling that I have to watch every move when dealing with children, lest someone sense something "inappropriate"?
Finally, to the legal minds here, are electronic devices containing personal 'papers' treated any different than paper papers and if so, why? I was under the impression that if I carried personal papers, their content wasn't any of the government's business unless they had probable cause. Unless, of course, travelling certain places IS probable cause.
I'm not sure how much the expectation of privacy buys. There may be various travels where there is a reasonable expectation of foreign privacy.
In regard to Oren's post:
Considering that with freely available software you can encrypt data in such a way....
Suppose someone's laptop is searched at the border.
Could the presence of encrypted data raise the level of suspicion to a probable cause level? Or could it just be the trigger to a more thorough, inconvenient and embarrassing encounter with authorities? Would any other violation statute during this encounter be admissible evidence?
Personally, it seems to me that encrypting data is just the equivalent of glueing the envelope shut.
What is the purpose of border searches? Is it to keep conterband and undesirable people out or is it to screen everyone for possible violation of a multitude of laws?
To read:
Would any other violation found during this encounter be admissible evidence?
Any evidence gathered at a border search is admissible for virtually any purpose. Legal search --> admissible evidence.
Encrypting data is not the equivalent of gluing the envelope shut. It is the equivalent of locking the document in a (nigh-impregnable) safe. A modern computer can easily encrypt files beyond the ability of the US gov't to casually brute force.
This is no different than the so-called "drug courier profile" meaning, you are a drug courier if you buy a ticket with cash, or buy a ticket with plastic, or buy a round trip ticket, or a one way ticket, or are male, or female, or young, or old, or traveling to a major drug distribution center (i.e., any city with an airport), etc.
Except this time, the subject of the search is not your personal effects for illegal "things," but rather your computer, to capture the entire range of your activity in an information society.
There is nothing inherently special or dangerous about information traveling physically on a hard drive across a border that makes it more reasonable to search than that same information, sitting on that same hard drive, inside your home or office. If the former is allowed, why not the latter?
um, yeah. I'm sure that is exactly what is meant "drug courier profile"-- that if you meet those criteria you ARE a drug courier.
But I seem to have lost all my links to where anyone in the government, or any serious person, said that. Would you mind supplying me with one?
That reminds me, I should post that article. Fun article.
As a practical matter, what sort of sactions could a court bring against a defendant that refuses to divulge his password?
And since any sensible drug courier will try to avoid meeting the profile, it is likely that someone not meeting the profile will be a drug courier. Appearing innocent can be very suspicious indeed!
Helped on a case here in AZ where one of the alleged bases for the stop was that the guy was driving in rush hour traffic down the freeway, and that traffickers would join in with rush hour traffic in order to appear innocent. So innocent behavior was indeed suspicious!
If I remember correctly, the court permitted the border search exception to be applied to vehicles up to the Border Patrol definition of border areas, which in this case was the Gila River, about a hundred miles north of the border.
It's a law review article, so "fun" probably doesn't apply to it, except for those anal retentively attached to the blue book. But it sounds interesting, as what would seem more private and privacy expected than a SSL type, or more, securely encrypted file.
I’m troubled by any kind of data except military secrets being regarded as contraband. After all once it was forbidden to have a bible in the vernacular in France.
He hasn't been convicted this time yet either.
Tenure is such an abomination.
Here are some cites, from U.S. v. Sokolov, (Marshall, J., dissenting):
Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile's "chameleon-like way of adapting to any particular set of observations." 831 F.2d 1413, 1418 (CA9 1987). Compare, e. g., United States v. Moore, 675 F.2d 802, 803 (CA6 1982) (suspect was first to deplane), cert. denied, 460 U.S. 1068 (1983), with United States v. Mendenhall, 446 U.S. 544, 564 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (CA4 1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (CA6 1977) (nonstop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (CA9), vacated, 831 F.2d 1413 (1987) (case below) (changed planes); Craemer, supra, at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (CA5 1981) (gym bag), cert. denied, 455 U.S. 991 (1982), with Sullivan, supra, at 12 (new suitcases); United States v. Smith, 574 F.2d 882, 883 (CA6 1978) (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (CA5 1980) (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, 444 U.S. 878 (1979), with United States v. Himmelwright, 551 F.2d 991, 992 (CA5) (acted too calmly), cert. denied, 434 U.S. 902 (1977). In asserting that it is not "somehow" relevant that the agents who stopped Sokolow did so in reliance on a prefabricated profile of criminal characteristics, ante, at 10, the majority thus ducks serious issues relating to a questionable law enforcement practice, to address the validity of which we granted certiorari in this case.
The current online edition (July 2002) of the DOJ manual, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, has this advice on the question you raise about applying such precedent to international data transmissions. (Note: The intrepid Prof. Kerr, in his former life at DOJ, was the principal author of the original edition of this manual.)
There is no "border exception" in the Fourth Amendment.
Nor in the 1st, 2nd, 3rd, 5th.....
The so-called judicial 'border exception' was invented from thin air by self-serving Federal bureaucrats.
Makes one wonder why the concept of 'written-law' ever became so popular ?
But my question is, how does someone this stupid get tenure at Wharton? Even ignoring the easy availability of strong encryption, a notebook computer's hard-drive is big. Huge. It should take hours if not days to analyze. This genius photographed himself committing serious crimes, put the photos in plain sight on his computer (or at least somewhere that a cursory search could find them), and then tried to carry the computer through customs.
This isn't my field, but as I understand it, there is a well-established distinction between a routine search (e.g., placing your luggage on an xray machine) and a nonroutine search (e.g., a body cavity search), with the latter requiring individualized reasonable suspicion. And in that sense, the border doctrine already recognizes that the government's power to search for contraband has to be balanced to some extent against legitimate privacy interests.
So, to me the question is whether people have a greater privacy interest in laptops than in luggage, such that looking at the data on a laptop should be a "nonroutine" search. And I think the answer should be "yes". For example, as I understand it, part of the explanation for why your luggage is considered less private is that if there are things you want to keep private, you can leave them at home rather than sticking them in your luggage when you travel abroad. That logic makes a lot less sense for laptops, where it is far harder to simply pick and choose which of the contents of your laptop you will "pack" for your trip. Indeed, I think laptops should be seen as equivalent to a piece of your home (a private space) you can carry around with you.
Unfortunately, I have no great confidence in our federal judges on these issues. I think they already blew it on cars, with judges failing to recognize that many people effectively "live out of their cars" in the sense that they treat them as an extension of their home spaces, rather than as just the equivalent of a taxi or limo. So, I worry judges also might not get how a laptop isn't just electronic luggage.
Wikstrom, which bueaucrats did you have in mind? The first Congress, which authorized inspection of all property entering the country?
In windows XP, just do start, search for pictures and photos, and it will instantly show thumbnails. That is a lightning-fast quick search.
The current online edition (July 2002) of the DOJ manual, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, has this advice on the question you raise about applying such precedent to international data transmissions. (Note: The intrepid Prof. Kerr, in his former life at DOJ, was the principal author of the original edition of this manual.)
In at least one case, courts have addressed whether the border search exception permits a warrantless search of a computer disk for contraband computer files. ...
Importantly, agents and prosecutors should not interpret [United States v.] Roberts as permitting the interception of data transmitted electronically to and from the United States. Any real-time interception of electronically transmitted data in the United States must comply strictly with the requirements of Title III, 18 U.S.C. §§ 2510-2522, or the Pen/Trap statute, 18 U.S.C. §§ 3121-3127. ...
Further, once electronically transferred data from outside the United States arrives at its destination within the United States, the government ordinarily cannot rely on the border search exception to search for and seize the data because the data is no longer at the border or its functional equivalent. ... [My emphasis]
Thank you very much for the DOJ manual citation.
I would observe that DOJ is chiefly concerned with complying with Title III and the Pen Trap statute - not FISA. This is reasonable since Justice is in the business of gathering criminal evidence while NSA is in the business of gathering intelligence. FISA proclaims itself the exclusive vehicle for regulating intelligence gathering, thus Title III and the Pen Trap statute should not apply in the case of the NSA Program.
To the extent that they are concerned with the 4th Amendment, Justice observes that interception which takes place after being received by the target in the US does not take place at the border.
What happens when the interception takes place at an international telecommunications hub as is supposedly the case under the NSA program? Would this be considered to be the virtual telecommunications border of the country?
Interesting questions. Does anyone know if a court has addressed whether the border exception to the 4th Amendment to international telecommunications?
The citation in the DOJ manual to "Title III, 18 U.S.C. §§ 2510-2522" does effectively reference FISA. It is Section 2511 that contains the language that says Title III and FISA together "shall be the exclusive means" for conducting electronic surveillance. (That was contained in the legislative act called the Foreign Intelligence Surveillance Act, which in turn amended 18 USC 2511 with the binding language.)
Also, the definitions contained within FISA reference the standards used for criminal warrants. Three of the four paragraphs in 50 USC 1801(f), defining "electronic surveillance" within FISA, contain this language: "... under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes."
The DOJ manual, of course, is not itself precedential authority, and it is possible that DOJ instructs its lawyers to follow this practice out of an abundance of caution.
You renew your question about a court case that explictly addresses whether the border exception to the Fourth Amendment covers international communications. I think it is reasonably clear by now that no such unicorn exists.
In windows XP, just do start, search for pictures and photos, and it will instantly show thumbnails. That is a lightning-fast quick search.
It depends on how many files are involved. When you get into the realm significantly above 10,000 images which is relatively easy to do if you regularly archive entire web sites then a search can take from hours to forever. I have in the past created directories that had so many files that the Windows search functions would crash.
Oh, and why was he allowed to teach after his retirement at all? If preventing him from teaching post-retirement is doable, why wasn't it done before? I hope the reason isn't just that he got less publicity in the past.
Bart, You renew your question about a court case that explictly addresses whether the border exception to the Fourth Amendment covers international communications. I think it is reasonably clear by now that no such unicorn exists.
I didn't think so, but I figured that if such precedent did exist that this was the place to seek assistance in finding it.
This means that we have yet another relatively novel question of law for the courts to chew on if the NSA program is ever reviewed.
Okay, I'll bite. This was more or less what happened in the Congressman Jefferson office search. If a search is otherwise "reasonable", the mere fact that it might intrude on privileged items (or in a congressional office case, certain to contain those items) wouldn't turn it into a Fourth Amendment violation.
Of course, the fact that the stuff is privileged will affect how it may be used (if at all).
And I don't think taking a laptop across a border would be enough to constitute voluntary disclosure such that it would defeat the privlege. But that's just me.
One thing: Can we stop the gratuitous slaps at Thailand?
I currently reside in Thailand because it's cheap, modern, safe and centrally located, with extensive low-cost air links to the rest of the world.
If Thailand seems to crop up in news accounts about alleged Western criminals, it's because Thailand makes it simple for almost any Westerner to move here. Abide by Thai law and visa rules, and you can live in a four-bedroom house with servants for less than $20,000 a year.
By contrast, neighboring countries like Laos, Vietnam and mainland China make it substantially more difficult to just move in and set up house.
Thailand shouldn't be penalized for its open, welcoming and economically astute policies with needless slurs.
A check of my passport reveals 21 visits to Thailand in the last 3 years (most involving client meetings). I assume that would be considered an unusual number by federal agents, who generally view a trip to Toronto as a suspicious exotic excursion. I guess I can expect to have my hard drive purused by federal agents next time I enter the US. I look forward to explaining to the G-men that the photos of the cute Amer-Asian tykes cavorting in bathing suits are holiday pics of my children and not kiddie porn.
Ironically, speaking as someone whose done a fair amount of pro bono legal work for anti-trafficking NGOs, the fact is that Thai underage foreign sex tourism is largely a canard. Foreigners might travel to Thailand to experience, inter alia, its beaches, golfing, culture, bargirls of legal age or transexual hookers. But foreigners seeking underage girls in Asia generally travel to Cambodia, the Philippines, Vietnam and Myanmar, where they are far more likely to find what they seek, unmolested by the authorities than they are in Thailand.
But how? If the presumption is that one has no reasonable expectation of privacy in communications and data files when crossing the US border, then how is taking a laptop with client documents across the border any different from a legal perspective than deliberately leaving a file-folder with hardcopies of those documents on a park bench?