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March 9, 2013 2:46 am
Border investigators must now meet a higher legal standard of suspicion before they are allowed to search the laptops and tablets of travellers entering the US, according to a ruling by a panel of US appellate judges.
Until now, personal electronic devices were treated by US border officials like any other piece of luggage: they had the right to search them thoroughly without any cause for concern or suspicion.
Under the new ruling, the court decided investigators must have reason to suspect that a traveller is involved in some kind of criminal activity before they are allowed to conduct a detailed search of these devices.
“A person’s digital life ought not be hijacked simply by crossing a border,” wrote Judge Margaret McKeown in the panel’s decision.
“Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives ... such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity.”
The decision came in a case brought before an 11-judge panel of the ninth circuit Court of Appeals. It concerned a man travelling from Mexico into the US at the port of entry at Lukeville, Arizona.
Border agents suspected he was involved in sex tourism, based on his 1992 conviction of having sex with a minor, a well-used passport, and his possession of a laptop and digital camera.
When the agents were unable to access password-protected files on the computer, they sent it to Tucson, Arizona, for an “extended border search”. They allegedly found 378 images of child pornography.
A thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity
- Judge Margaret McKeown
The man’s attorneys later tried to suppress the evidence found on his computer, arguing that investigators should have first shown that the standard of “reasonable suspicion” was met in order to send the laptop to Tucson for the thorough forensic search.
A lower court judge agreed. Then a smaller panel of judges for the ninth circuit reversed that decision and said the standard of reasonable suspicion was not necessary.
But the larger panel of judges said on Friday that it was. In an eight to three decision, the majority of judges said the standard of reasonable suspicion was required for the investigators to search the man’s laptop. The majority also found that the investigators in the case had indeed met that standard.
The man is in custody in Arizona awaiting trial until this matter is resolved. Bill Kirchner, his attorney, said he “respectfully disagrees” with the court’s decision and would be likely to seek further review of the matter in the US Supreme Court.
Three judges in the case dissented, arguing the new rule hampered border officials in protecting the national security of the US.
“Whether it is drugs, bombs, or child pornography, we charge our government with finding and excluding any and all illegal and unwanted articles and people before they cross our international borders,” wrote Judge Consuelo Callahan.
“This rule flouts more than a century of Supreme Court precedent, is unworkable and unnecessary, and will severely hamstring the government’s ability to protect our borders.”
The broader impact of the case is that the new rule on reasonable suspicion is in place for the future for all travellers, adding a level of privacy protection that was not previously worked into border rules. Privacy advocates hailed the ruling.
“The ninth circuit recognised that the forensic search of a hard drive is different from rummaging through a brief case,” said Michael Price, an attorney with the Brennan Center for Justice at New York University, which sponsored a legal brief in support of the stronger privacy protection.
“It’s akin to reading a diary line by line, and, on top of that, also looking for what may have been erased.”
Electronic devices are still subject to cursory searches without reasonable suspicion. Though the law is still evolving, investigators are still allowed to ask travellers to boot up their computers and poke around the desktop without cause.
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