Sunday, March 10, 2013

A Small Victory For Privacy Rights

An appeals court has smacked down the Obama administration's claim that customs agents can peruse Americans' electronic devices for evidence when returning to the country-- without having even a reasonable suspicion of criminal activity.   U.S. customs officials must have a reasonable justification before snatching your laptop at the border and scanning through all your files for incriminating data, a federal appeals court ruled last week.

The Ninth Circuit Court of Appeals ruled that Homeland Security's border agents must have "reasonable suspicion" before they can legally conduct a forensics examination of laptops, mobile phones, camera memory cards, and such other devices.

The court's ruling is a limited -- but hardly complete -- rejection of the Obama administration's claim that any American entering the country may have his or her electronic files minutely examined for evidence of criminal activity. Homeland Security has said the electronic border searches could detect terrorists, drug smugglers, and people violating "copyright or trademark laws."

It's only a limited rejection because certain warrantless searches at the border remain permissible: The judges said that "a quick look" or "unintrusive search" of a laptop, such as asking its owner to turn it on and peruse open windows, is perfectly OK. In addition, the court indicated that previous criminal history qualifies as "reasonable suspicion" that justifies a complete forensics analysis.

A unusual dissent written by Judge Milan Smith argues that flagging a traveler merely based on a decades-old conviction does not amount to "reasonable suspicion," saying: "The bottom line is that thousands of individuals -- many with decades-old convictions -- will now be forced to reconsider traveling to entire countries or even continents, or will need to leave all their electronic equipment behind, to avoid arousing a 'reasonable' suspicion."

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