Court Says Border Searches Of Your Computer Are Okay Because You Shouldn’t Keep Important Info On Your Computer
by alethoBy Mike Masnick | Techdirt | December 31, 2013
This one is hardly a surprise, given how many (though not all) courts have ruled
concerning searches of computing devices at the border. The
government's general theory is that there is no 4th Amendment right at
the border, and thus customs officials can search anything. The argument
that they're trying to prevent "bad stuff" from getting into the
country really doesn't make much sense though. If bad stuff is "on a
computer" it could easily be sent digitally across the border with no
intervention from a customs official. Furthermore, making border
searches of laptops and phones even more troubling is the nature of how
information is stored. When we pack for a trip we deliberately choose
what to include in our suitcase -- so we know what's coming with us.
However, on our electronic devices, we pretty much store absolutely
everything. Arguing that these are subject to a full search seems
problematic -- but many courts have found otherwise.
And, now there's another one. A judge in NY has dismissed a challenge to the searches
brought by the ACLU. The judge, Edward Korman, repeatedly quotes former
head of Homeland Security, Michael Chertoff, who now makes money by
hyping up the threats the country faces, so it's not like he's the most
unbiased of folks to be relying on for how important these border
searches really are. Judge Korman claims that the defendants have no
standing to bring the case in the first place. There is one individual
(a PhD. student) who actually had his computer searched, and then some
professional organizations who worried about their members having their
computers searched. The judge is simply not impressed by their
arguments... at all. He notes that Customs and Border Patrol appears to
search so few laptops that it's highly unlikely that any individual will
have theirs searched -- and thus these groups can't really allege a
likely harm. He points out that it's wrong to use a declaratory judgment
case to address "a claim of alleged injury based on speculation as to
conduct which may or may not occur at some unspecified future date."
As
for the one guy, Pascal Abidor, who did have his laptop searched, Judge
Korman is also not impressed, noting that he's not suing over that
particular search, but the possibility of future searches. The judge
seems a bit perplexed by this decision, but notes that it takes away his
ability to get standing:
Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged.
But, as Judge Korman notes, if he can't show any real likelihood of future harm, he can't show standing.
Even
after dismissing for lack of standing, the judge decides to take on the
issue anyway, and this is where he starts to get really insulting to
anyone who thinks that perhaps they should have some privacy rights at
the border. He openly mocks the plaintiffs for arguing for the need for a
"reasonable suspicion" standard for searches, noting that this bar is
so low that it's not like they'd get much more privacy out if it anyway:
Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to "guarantee" confidentiality to their sources.
He
goes on to suggest that since traveling internationally involves going
into other countries, these same people would probably have even less
privacy over their data, since other countries may be even more willing
to search their computers. He even cites the situation of David Miranda
having his electronics searched in the UK.
Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah. Indeed, the New York Times recently reported on the saga of David Michael Miranda who was detained for nine hours by British authorities "while on a stop in London's Heathrow airport during a trip from Germany to Brazil."
While
the judge's point is correct that other countries are unlikely to
protect the privacy of travelers as well, and that means that any
information on a laptop may be inherently unsafe, it seems like a bit of
a weak copout to argue that since other countries have no respect for
your electronic privacy, that the US shouldn't either.
He
goes even further, arguing that because there's a "special need" at the
border to stop bad people, that it's perfectly fine to ignore things
like probable cause or reasonable suspicion -- again quoting Michael
Chertoff to suggest that border laptop searches have stopped "bad
people" from entering the US.
But then he argues that since everyone knows they may be searched at the border, there isn't really an invasion of privacy:
The invasion of privacy occasioned by such a border search, however, like the search of luggage, briefcases, and even clothing worn by a person entering the United States, is mitigated by other factors..... As Professor LaFave observes, because "the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches." .... Thus, "[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him."... Indeed, because of the large number of laptop computers (close to a million per year) that are lost by travelers--numbers that far exceed the comparative handful of laptops that are searched at the border--the sensible advice to all travelers is to "[t]hink twice about the information you carry on your laptop," and to ask themselves: "Is it really necessary to have so much information accessible to you on your computer."
This
seems problematic on multiple levels. First, if we go by the idea that
there's less of a privacy violation because you know it's coming, then
that gives the government the right to ignore the 4th Amendment so long
as it tells you ahead of time that it's going to ignore the 4th
Amendment. Even the Supreme Court in Smith v. Maryland -- the infamous
case concerning the 3rd party doctrine -- states that such a scenario is
ridiculous, and that just because you know that you're going to be
searched, it doesn't automatically make the search reasonable.
As
for the suggestion that you shouldn't store stuff on your computers,
I'm sure that's great in theory, but I'd like judges to make decisions
based in reality. This suggestion is basically "don't use your computer
for what it's designed for, because we might search it." That's not
exactly compelling.
Again,
given past precedents, and the specific facts of this case, it's not
entirely surprising. That doesn't mean it's not disappointing to see yet
another middle finger given to the 4th Amendment to close out the year.
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