Posted by: Sharon Fisher
aclu, eff, encryption, federal government, government, homeland security, privacy
In the tv show the West Wing, there’s an episode in the first season called “Take Out the Trash Day,” where Josh explains to Donna that in White House parlance, “take out the trash day” refers to the practice of releasing potentially embarrassing news stories at a time when people aren’t likely to see them.
On December 31, the Federal Judicial Court took out an epic piece of trash.
As you may recall, the Department of Homeland Security (DHS) announced in August, 2009, a policy regarding searches of computers at the border. As you may also recall, U.S. Customs and Border Protection has jurisdiction to enforce laws within 100 miles of the border. And while 100 miles of the border doesn’t sound like much, you may also recall that, according to the American Civil Liberties Union (ACLU), as of 2006, more than two-thirds of the U.S. population lived within 100 miles of the border. All together, it meant that anyone in that area with a laptop could have that laptop seized without a warrant, at any time, taken to a lab anywhere in the U.S., have its data copied, and searched for as long as Customs deemed necessary.
All caught up now?
In 2010, the National Association of Criminal Defense Lawyers (NACDL), the American Civil Liberties Union (ACLU), the National Press Photographers Association (NPPA), and the New York Civil Liberties Union (NYCLU) filed a lawsuit against this policy, saying it amounted to unreasonable search and seizure, particularly in the case of attorneys who might have information under attorney-client privilege or journalists who might have off-the-record information.
On December 31, Judge Edward R. Korman of the Federal District Court for the Eastern District of New York dismissed the lawsuit, saying, essentially, that it just doesn’t happen all that much (“10 in a million,” according to him, 6,500 between 2008 and 2010 according to the ACLU), the government needs to be able to search laptops to protect the country, and what are people doing taking such secure information out of the country anyway?
“While it is true that laptops may make overseas work more convenient,” Korman wrote in the decision, “the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.” He also noted, “[I]t would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas.”
As it happens, in March, the Ninth Circuit Court reached a somewhat different verdict on a similar case, United States vs. Cotterman, finding that government agents must have reasonable suspicion before engaging in a forensic search, which is a more detailed kind of electronic search — but which, as the Electronic Frontier Foundation pointed out, isn’t defined in the decision. In addition, that decision applies only to the Ninth Circuit.
Korman’s dismissal of the case means that in areas other than the Ninth Circuit, and for cases anywhere that are just a cursory search rather than a forensic search (for which probable cause is required), border agents are still authorized to conduct warrantless searches of electronic devices that store data. That’s not just laptops, but also other devices such as smartphones and electronic cameras. (States covered by the Ninth Circuit include California, Washington, Oregon, Idaho, Montana, Nevada, Arizona, Alaska and Hawaii, according to the New York Times.)
In June, in response to a Freedom of Information Act request filed by the ACLU, the DHS released its December 2011 Civil Rights/Civil Liberties Impact Assessment, which is what explained why the agency felt it needed the right to search people’s electronic devices without a warrant. According to that report, revealing the suspicion could be a matter of national security. In addition, the report continued, it would mean that agents couldn’t act on “hunches,” an opinion that the ACLU criticized. “As the Supreme Court explained in Terry v. Ohio, if law enforcement agents are allowed to intrude upon people’s rights ‘based on nothing more substantial than inarticulate hunches,’ then ‘the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers and effects,” only in the discretion of the [government],’” the ACLU wrote.
Politifact, in examining the case, pointed out that border searches have been legal for hundreds of years, and that the only difference now is that we’re talking about electronic devices that could have a great deal of data on them.
The ACLU and NPPA are considering whether to appeal Judge Korman’s decision — which could go as far as the Supreme Court.
While one can say, okay, fine, I’ll just encrypt my laptop, keep in mind that case law regarding encryption and whether a person can be compelled to produce the password is far from clear, with a total of half a dozen or so cases that are split pretty evenly. That decision, too, is expected to eventually reach the Supreme Court.