04-07-2011, 06:58 PM
Quote:The authorities may seize laptops, cameras and other digital devices at the U.S. border without a warrant, and scour through them for days hundreds of miles away, a federal appeals court ruled.
The 2-1 decision (.pdf) Wednesday by the 9th U.S. Circuit Court of Appeals comes as the government is increasingly invoking its broad, warrantless search-and-seizure powers at the U.S. border to probe the digital lives of travelers.
Under the “border search exception” of United States law, international travelers, including U.S. citizens, can be searched without a warrant as they enter the country. Under the Obama administration, law enforcement agents have aggressively used this power to search travelers’ laptops, sometimes copying the hard drive before returning the computer to its owner.
Courts have ruled that such laptop searches can take place even in the absence of any reasonable suspicion of wrongdoing, and more than 6,500 persons have had their electronic devices searched in this manner since October 2008.
The issue has gained renewed attention in recent months as American computer geeks connected to WikiLeaks, or who know people connected with WikiLeaks, have found themselves repeatedly singled out for the searches.
At issue in the case decided Wednesday was the prosecution of a California man on child pornography charges. In 2007, ICE agents seized three laptops and a camera from convicted child molester Howard Cotterman, and transported them 170 miles away for a two-day search that uncovered hundreds of child porn images.
A lower court judge threw out the evidence, finding that the border exception did not apply when the search went beyond the border area.
The government appealed. Cotterman’s lawyers argued that law enforcement should only be allowed to search digital devices at points of entry where they have the necessary equipment and personnel on hand.
“We find this position simply untenable,” 9th Circuit Judge Richard Tallman wrote for the majority, reinstating the evidence. Limiting searches “would only reward those individuals who, either because of the nature of their contraband or the sophistication of their criminal enterprise, hide their contraband more cleverly or would be inclined to seek entry at more vulnerable points less equipped to discover them.”
The court also affirmed that “particularized suspicion” was not required for a border search.
In dissent, Judge Betty Fletcher wrote that the government should have had a better reason to search Cotterman other than him being a convicted in 1992 of child molestation.
“I add my voice to the chorus lamenting the apparent demise of the Fourth Amendment,” Fletcher wrote.
About that Constitution thing...
Also, fuck you Obama.
Here's another one:
Quote:Justice Dept. to Congress: Don’t Saddle 4th Amendment on Us
The Obama administration is urging Congress not to adopt legislation that would impose constitutional safeguards on Americans’ e-mail stored in the cloud.
As the law stands now, the authorities may obtain cloud e-mail without a warrant if it is older than 180 days, thanks to the Electronic Communications Privacy Act adopted in 1986. At that time, e-mail left on a third-party server for six months was considered to be abandoned, and thus enjoyed less privacy protection. However, the law demands warrants for the authorities to seize e-mail from a person’s hard drive.
A coalition of internet service providers and other groups, known as Digital Due Process, has lobbied for an update to the law to treat both cloud- and home-stored e-mail the same, and thus require a probable-cause warrant for access. The Senate Judiciary Committee held a hearing on that topic Tuesday.
The companies — including Google, AOL and AT&T — maintain that the law should be changed to reflect that consumers increasingly access their e-mail on servers, instead of downloading it to their hard drives, as a matter of course.
But the Obama administration testified that imposing constitutional safeguards on e-mail stored in the cloud would be an unnecessary burden on the government. Probable-cause warrants would only get in the government’s way.
James A. Baker, associate deputy attorney general, testified:
Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means — a probable cause warrant — for compelling disclosure of all stored content. For example, in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish. In one recent case, for example, law enforcement officers knew that a child exploitation subject had used one account to send and receive child pornography, and officers discovered that he had another email account, but they lacked evidence about his use of the second account.
Baker invoked the usual parade of horribles in his argument.
“The government’s ability to access, review, analyze and act promptly upon the communications of criminals that we acquire lawfully, as well as data pertaining to such communications, is vital to our mission to protect the public from terrorists, spies, organized criminals, kidnappers and other malicious actors,” (.pdf) Baker testified.
Don’t expect Congress to come out in favor of expanding Americans’ civil liberties in the post–Sept. 11 world. CNET reported that Sen. Chuck Grassley (R-Iowa) said demanding warrants would be a burden to law enforcement in addition to “the court system.”
Congress has held countless hearings about reforming the Patriot Act, too. In the end, however, lawmakers have repeatedly punted on that issue, and we suspect they will embark on the same course when it comes to reforming EPCA.
The judiciary, however, has taken a different course. A federal appeals court in December ruled that e-mails were protected by the warrant requirement.
That decision by the 6th U.S. Circuit Court of Appeals became law March 21. It affects Kentucky, Michigan, Ohio and Tennessee.
What the fuck is the purpose of the Constitution if we're not going to abide by it?