US Ninth Circuit says forensic laptop searches at the border without suspicion are unconstitional

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12 Responses to “US Ninth Circuit says forensic laptop searches at the border without suspicion are unconstitional”

  1. Another Kevin says:

    I read this and cheered… and then read more carefully.  Ninth Circuit – the US court with the most overturned decisions.

    I now await the inevitable split between the Fifth and Ninth Circuits (which will come over a similar case at the Texas border or at a Gulf port of entry), and the nearly equally inevitable decision of the US Supreme Court that such an action isn’t an unreasonable search or seizure because we said so.

    Sorry, I’m just not in an optimistic mood today.

    • Alan Wexelblat says:

      This is actually a fairly amusing and cleverly crafted decision. What the 9th said was that these searches require specific circumstances AND that such circumstances existed in this case.  So the decision came down in favor of the US (and against the defendant).  This puts the government in the very odd position of possibly trying to appeal a ruling in which it won.  They can do that, in part by arguing that the criteria drawn were incorrect or that the basis for the decision was incorrect but SCOTUS looks down on such appeals and rarely grants cert.

      And for the record I believe the 9th is no longer the Circuit most overturned by the Supremes.  The 6th now has that dubious distinction.  This is especially true if you look at percentages rather than absolute numbers.  The Ninth is a HUGE Circuit both in terms of geography and in terms of number of people within its boundaries. Thus the sheer number of cases it takes and the number that get appealed to SCOTUS tend to skew the stats.

      What really needs to happen is that the 9th needs to be split into two circuits.  Finding a way to do that without splitting up CA itself is going to be hard and having a state that spans two Circuits is bad juju – it makes for all sorts of weird contortions.  But I digress.

  2. tamgoddess says:

     Yeah, a decision by the Ninth Circuit is kind of like a decision by Elizabeth Warren. Nice, but not often binding. Still, it is a moral victory and could signal changes to come. Unanimous is a good sign.

  3. Jim Saul says:

    I can’t believe that my first reaction is surprised delight that the decision actually reflects a basic understanding of the relevant technology.

    Imagine what a utopian fantasy it would be to expect and require that our laws and courts exhibit even the most basic grounding in reality.

  4. ColHapablap says:

    The problem is that while they ruled that password-protected files alone aren’t enough to warrant a search, in this case there was reasonable suspicion because there were password protected files and he was convicted of a sex offense 15 years prior.  So while they can’t do forensic analysis for just having password-protected files, if they come up with pretty much any other reason that you’re “suspicious”, they’ll call it reasonable suspicion.

  5. awjt says:

    Let’s say this is overturned by SCOTUS.  What then?  What do you do?  …Stuff you should be doing anyways:

    1. don’t take a laptop across the border.
    2. don’t take your passwords in a laptop across the border.
    3. don’t have encrypted files on that laptop that you’re taking across the border.
    4. if you must have encrypted files or partitions on the laptop, at the very least have them hidden, not in plain view.
    5. if you must have plain view encrypted files or partitions on the laptop, at least claim business use rather than as a person.  LLCs are cheap and easy to get; there’s no reason not to have one.  The laptop should be property of the LLC, not you.
    6. ok, let’s go back a couple steps.  If you must have encrypted files, and are subject to a forensic analysis, at least have the encrypted file/partition also contain a hidden encrypted partition, which allows plausible deniability that it even exists, since it appears the same as the rest of the encrypted volume: as gibberish.  They can’t prove that it exists, and you don’t have to tell them.
    7. back up your shit somewhere else they can’t touch. 

  6. daemonsquire says:

    I suspect a quick search of your laptop may find a matching “tu” for your constition. I’ll keep an eye out for you at the border, but I’m unlikely to detain you.

  7. Hannukah Dreidl says:

    Speaking from personal experience, bringing a clean install device (OS, possibly additional commercial software, no personal files yet) across the US border is also considered grounds for reasonable suspicion. A blank device – surely one is concealing something, or trying to avoid declaring a purchase (i keep copies of my receipts for this purpose)

    Also, my laptops sometimes had spyware installed after they were searched and returned by DHS or Customs.

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