By: Cindy Hu (Hsin-Yi Hu)
Under the U.S. law, the so-called “border search exception” allows government to search the international travelers – including the U.S. citizens – and their luggage and vehicles at any reason when they enter the country. However, this exception might be limited because of the new ruling of the 9th U.S. Circuit Court of Appeals.
On Friday, March 8th, 2013, the Court of Appeals has ruled that digital devices are granted limited relief from “border search exception.” Judge M. Margaret McKeown (*.pdf.) stated that “A person’s digital life ought not to be hijacked simply by crossing a border.” Different from packing traditional luggage which one can decide what to bring and what to leave behind, laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.
However, several critics and dissenting opinions have risen from this ruling. The San Francisco-based appeals court said that the Court’s view was too extreme. In this court’s opinion, the Court left rules intact that a “manual review of files on an electronic device” may be undertaken without justification while using “software” to decrypt password protected files or to locate deleted files now requires “reasonable suspicion” that criminal activity is afoot. Additionally, Judge Milan Smith in his dissenting opinion states that the ruling of the majority raises national concern because this ruling opens the nation’s borders “to electronically savvy terrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection.”
Furthermore, although the decision made by the Court seems to bolster the digital rights of travelers, but it’s pronouncement of reasonable suspicion requirement, in Michael Price’s opinion (the counsel for the Liberty & National Security Program of the Brennan Center for Justice at New York University), seeks to whittle away at the border search exception.
As the Court noted that no reason was needed to manually inspect the content of a gadget, but a forensic examination required a “reasonable suspicion.” The Court found enough “reasonable suspicion” based on the mere facts that the defendant was a convicted sex offender and frequently traveled to Mexico, a known destination for sex tourism. What’s more, adding to reasonable suspicion, under what the Court labeled as the “totality of the circumstances,” was the fact that some of the files on one of the laptops were password protected. “We really didn’t think there was any reasonable suspicion for the forensic examination,” Price said.
As stated above, the outcome of this ruling might seem to be a big step for the digital rights of travelers; however, the Court’s analysis on “reasonable suspicion” and the way it differentiates computer software and manual review also raise other questions: Why the use of computer software to analyze a hard drive triggers a reasonable suspicion requirement while a “manual review” of the same hard drive requires no suspicion, is left unexplained. Although technology may serve as a useful proxy for the intrusiveness of a search today, in the future even cursory searches might be more efficiently conducted by the use of such technology.
The full content of the article can be found at http://www.wired.com/threatlevel/2013/03/gadget-border-searches/, Appeals Court Curbs Border Agents’ Carte Blanche Power to Search Your Gadgets, BY DAVID KRAVETS, 03.08.13, 5:19 PM