Court Upholds Warrantless Searches of Electronic Devices

Thursday, April 07, 2011

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The  U.S. Court of Appeals for the Ninth Circuit has ruled that electronic devices such as laptops and cell phones may be seized at the border, confiscated, searched, and even transported to a separate facility for forensic examination - all without need for a warrant demonstrating of due cause.

Simply entering the United States is cause enough to suspend your Fourth Amendment right to protection from unwarranted search and seizure.

A similar ruling was handed down by a federal court in Michigan in 2010, and several other rulings have sided with law enforcement on the issue of warrantless search and seizure at border entry points, establishing a strong legal precedence.

At issue in this latest care was whether or not law enforcement could transport the electronic devices to a separate facility for intensive forensic examination.

"The sticking point is whether the inherent power of the Government to subject incoming travelers to inspection before entry also permits the Government to transport property not yet cleared for entry away from the border to complete its search. The border search doctrine is not so rigid as to require the United States to equip every entry point -- no matter how desolate or infrequently traveled -- with inspectors and sophisticated forensic equipment," Judge Richard Tallman wrote for the majority opinion.

Few would argue that law enforcement needs to be able to search electronic devices when there is cause to believe they may be employed in the course of a crime, but critics of the warrantless searches argue that the border inspections may be abused, amounting to fishing expeditions.

One example is the detainment and subsequent search of electronic devices in the possession of white hat hacker Moxie Marlinspike last year. Marlinspike is noted for his work in exposing critical vulnerabilities in the verification of digital certificates.

Marlinspike was not known to be the subject of any criminal investigation, nor did he appear to be an immediate threat to national security. Nonetheless, he was detained at JFK International Airport upon returning from an overseas conference.

"I have no idea what's going on, why this is happening to me. From the questions I've had to field it seems like this is part of some larger fishing expedition. There is someone somewhere who wants access to something on my laptop or my phone and they can't just come and ask me for it. And they can't get a warrant without suspicion. So, they wait for me to travel internationally because at the border they can do anything they want," Marlinspike told CNET.

US Customs agents requested that Marlinspike provide the passwords needed to access encrypted data on his laptop and two cell phones, but he refused. After being detained for five hours, the equipment was returned and he was released.

Warrantless searches and seizure of electronic devices is a policy that looks to be now well established from a legal standpoint. Even the U.S. Supreme Court has confirmed that border searches are reasonable simply because they occur at the border.

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