

9th Circuit Appeals Court: 4th Amendment Applies At The Border - computator
http://www.techdirt.com/articles/20130308/13380622263/9th-circuit-appeals-court-4th-amendment-applies-border-also-password-protected-files-shouldnt-arouse-suspicion.shtml

======
btilly
I love the ruling.

Unfortunately we have a 5-4 split in the Supreme Court. The liberal minority
only needs a single judge to come to their side to win this. However on civil
liberties the trend has been negative. I'm therefore not particularly
optimistic.

~~~
rayiner
It depends which civil liberties you're talking about. The Roberts court has
been good for free speech and gun rights, and it wasn't just the liberals.
Brown v. EMA was 7-2 for example. The pro-habeas Hamdan, Hamdi, Boumediene
cases also came out under Roberts. Several positive decisions on drugs (can't
ban hullucigenic teas) and search an seizure too (GPS case).

~~~
btilly
Free speech is protected - so long as it is speech by corporations. I'm sure
that corporations everywhere rejoiced at _Citizens United_.

But compare with _Morse v. Frederick_.

~~~
strlen
Supreme Court doctrines aren't about left vs. right in the conventional sense.
The justices are very solid about the principles they claim to stick to
(standards of judicial review, what constitutes limitations on commerce
clause, etc...) and civil liberties aren't a left vs. right matter.

See
[http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchant...](http://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchants_Association)
for example: Scalia wrote a very strong pro-free speech majority opinion,
extending speech to cover violent video games. Beyer (generally thought of as
liberal) dissented using logic he would use in any other decisions, Thomas
again used the "en-loco parentis" argument he often makes in decisions
involving children (I disagree with him, but he sees it as consistent with
support of free speech). See also Thomas' dissent in Raich vs. Gonzales.

In 9th circuit, judge Alex Kozinski is probably the best example of a strongly
civil liberties minded conservative/libertarian justice. I would like to see
Kozinski in SCOTUS, but I'm pretty sure he'll receive The Mother of All
Borkings if ever nominated.

~~~
jaggederest
parenthetically, it was only recently that I realized the origin of the term
'borked' as relating to the nomination of Robert Bork to the Supreme Court.

~~~
ahi
I always thought it was a reference to the swedish chef on the muppets. I
prefer my etymology.

------
smsm42
Great quote from a dissent opinion:

Now border agents, instead of knowing that they may search anyand all property
that crosses the border for illegal articles, must ponder whether their
searches are sufficiently “comprehensive and intrusive,” to require reasonable
suspicion, and whether they have such suspicion.

He says it as if not being able to search everything and everybody and
requiring the agents to consider the privacy implication and intrusiveness of
the search and if is is warranted or not - is a bad thing!

~~~
jrs235
"Can we search your belongings?" "Why? Do you have reasonable suspicion to?"
"We do now."

When obeying the law and defending your rights becomes suspicious and cause
for interrogation, 1984 has arrived.

When driving at or under the speed limit at 2 am gets you pulled over you
realize how close we are to a police state.

Edit: I know the first bit is illegal but it happens. The police just make up
some bs to cover their butts.

~~~
smsm42
Unfortunately, you are right on the bs part - just recently SC declared that
police drug dogs are always 100% accurate despite clear evidence to the
contrary, and as such can be used as a probable cause. So we have a situation
where we made a step forward with requiring probable cause, and step back with
allowing the police to invent it by signaling a trained dog to bark.
Maintaining liberty is never easy.

------
rdl
Again, the 9th circuit proves to be the best circuit. I would not be willing
to live in the US outside the 9th circuit until a number of split circuit
issues are resolved. Fortunately the 9th is the biggest and covers all the
places I'd otherwise care about.

Think about how much less fucked weev would be next week if he were before
Alex Kozinski rather than some NJ guy.

~~~
dfc
I realize they didn't have much of a choice but I was hoping the 9th circuit
would have found a way to decide in favor of the sea shepherds.

~~~
rdl
I care much more about legal precedent than individual cases. The legal theory
to allow piracy on the high seas would have been super convoluted.

(although, personally, I'm against whaling, I'd also have supported the
Japanese vessel if it lit the pirates up, too. )

------
ajays
Here's the problem: even with this ruling, there is nothing preventing the
border patrol people from continuing to seize and search laptops and phones.

In other words: there is no adequate punishment for violating a citizen's
constitutional rights. At most, the evidence (if any) can't be used in a court
of law. But there is never any punishment. For example: the dude who was
imprisoned in solitary in NM for 2 years, without a trial or being presented
before a judge (6th Amendment?). Sure, he got a boatload of money; but _no one
was punished_.

------
dfc
I'm all for changing titles when they make the topic clear to the reader or
combat hyperbolic escalation. With that in mind what was wrong with the
original title?

 _9th Circuit Appeals Court: 4th Amendment Applies At The Border; Also:
Password Protected Files Shouldn't Arouse Suspicion_

Other than grammatical errors what did the change of title provide?

~~~
LeeHunter
The new heading seems reasonably accurate and much more clear.

"9th Circuit Appeals Court" does not add useful information (at least not
enough to warrant inclusion in the heading) and "4th amendment" doesn't mean
anything at all to those of us who are not Americans.

~~~
rayiner
9th Circuit adds a ton of useful information: its decisions are only binding
in the 9th circuit (California, etc). Also, it's the most overturned Circuit
at the Supreme Court level by a large margin.

~~~
Natsu
> Also, it's the most overturned Circuit at the Supreme Court level by a large
> margin.

The stat pack for the previous term appears to disagree with you. (For anyone
not familiar with their terminology, note that OT 2011 refers to the period
between October 4, 2011 and September 30, 2012.)

[http://sblog.s3.amazonaws.com/wp-
content/uploads/2013/03/SCO...](http://sblog.s3.amazonaws.com/wp-
content/uploads/2013/03/SCOTUSblog_Stat_Pack_OT11_Updated.pdf)

The 9th Circuit was 7-17 while the 6th was 0-5. For a discussion of prior
years, see: [http://westreferenceattorneys.com/2011/07/should-the-
ninth-c...](http://westreferenceattorneys.com/2011/07/should-the-ninth-
circuit-be-judged-by-reversal-rates/)

------
gnosis
As welcome as this ruling is, if you wanted to keep something private, hoping
that the government obeys the law may not be the wisest approach.

------
dfc
I was impressed with the discussion of the implication of device access when
all your data is in the cloud.

For more detailed discussion of the cotterman case see professor kerr's most
recent post:

[http://www.volokh.com/2013/03/08/en-banc-ninth-circuit-
holds...](http://www.volokh.com/2013/03/08/en-banc-ninth-circuit-holds-that-
computer-forensic-searches-are-like-virtual-strip-searches-and-require-
reasonable-suspicion-at-the-border/)

And his earlier posts:

[http://www.volokh.com/2011/03/30/ninth-circuit-decides-
cotte...](http://www.volokh.com/2011/03/30/ninth-circuit-decides-cotterman-
case-reversing-district-court-on-laptop-seizure-at-the-border/)

[http://www.volokh.com/2011/01/17/update-on-united-states-
v-c...](http://www.volokh.com/2011/01/17/update-on-united-states-v-cotterman-
ninth-circuit-case-applying-the-border-search-exception-to-computers/)

[http://www.volokh.com/2012/07/02/ninth-circuit-en-banc-
argum...](http://www.volokh.com/2012/07/02/ninth-circuit-en-banc-argument-in-
united-states-v-cotterman/)

~~~
jmomo
We currently live in a world where most of those in power are old people who
don't know wtf teh internets is, nevermind have any conceptual grasp of the
changes that drones, nanotech, human modification and augmentation, and
similar will cause in our society.

I am shocked, like I think you are, that these judges would have even the
slightest clue. This is just uncharacteristic for the kinds of rulings we
usually see when anything technology is related.

I expect that near the end of my lifetime, when people my age are in power, if
not sooner, a large number of laws and rulings will be overturned and changed
in radically legal-altering ways.

But it has always been that way. Even within my lifetime, we no longer think
that ulcers are caused by stress, mobile phones/computers became reality, and
a non-white person was elected present of my country. These are all pretty
radical things.

~~~
smsm42
>>>> We currently live in a world where most of those in power are old people
who don't know wtf teh internets

No we do not. A person who is now 60 (reasonable estimate age for "old people
in power" - Obama is 52, John Roberts is 58, Boehner is 64) has lived in the
internet age for almost 20 years, since he was 40. If you assume people can't
learn something that is happening before their eyes for 20 years while they
are at the peak of their career - you must have ver low and counterfactual
opinion about these "old people". It may have been true 15 years ago, but
repeating it now, in 2013, makes one sound a bit out of date. Virtually all
"old people" now know what the internet is, and have been for years.
Proverbial "your mother" now knows how to use the computer and follows you on
Facebook. The times where internet was for hip youngsters has long passed,
deal with it.

~~~
nitrogen
_If you assume people can't learn something that is happening before their
eyes for 20 years while they are at the peak of their career - you must have
ver low and counterfactual opinion about these "old people"._

Some things have to be experienced from birth to be truly understood. Knowing
what the Internet is and how to interact with it are not the same thing as
growing up with the Internet and having it be as much a part of oneself as
one's religion or hometown.

~~~
waterlesscloud
So you're not able to understand 3D printing? Or bitcoin?

~~~
smsm42
Facebook was created 9 years ago, he's probably older than 9 (though I can't
be sure), so poor chap can't understand Facebook!

------
ChuckMcM
Well that is a nice surprise. I hope it holds up at the SCOTUS level.

------
knite
According to the article, password-protected _files_ aren't reasonable grounds
for suspicion. What about refusing to log into your machine or give up your
login password?

------
tempestn
Question: Do 4th Amendment rights apply only to US citizens? Or would this
ruling apply equally to, say, Canadians crossing the border into the US?

~~~
tempestn
Answer: Looks like it applies equally to non-citizens. Will feel better about
bringing my laptop across the border now. <https://ssd.eff.org/your-
computer/govt/fourth-amendment>

------
TravisDirks
Does ruling impact the DHS discussion from a couple days ago?
<http://news.ycombinator.com/item?id=5321036> [http://www.aclu.org/national-
security_technology-and-liberty...](http://www.aclu.org/national-
security_technology-and-liberty/are-you-living-constitution-free-zone)

------
hakaaaaak
I wish that we didn't even have to have rulings.

It should just be common sense to leave people alone if they aren't hurting
anyone else.

------
ctdonath
A good sensible ruling.

Now, given that my data is private and only subject to search under warrant,
are my privates likewise private?

------
snowwrestler
One interesting aspect to this case is that the majority actually ruled _for_
the government, in that the incriminating evidence was not be suppressed. It's
just that in doing so, they clarified some points of law along the way in a
way we like.

That matters because it means that the government will not appeal the ruling,
even though it might limit border agents in the future. It also means that if
the defendent does get it appealed to the Supreme Court, the government would
probably be ok if the Supreme Court ruled the same way.

------
OGinparadise
My guess is that this will be overturned by SCOTUS
[http://www.abajournal.com/magazine/article/a_sixth_sense_6th...](http://www.abajournal.com/magazine/article/a_sixth_sense_6th_circuit_has_surpassed_the_9th_as_the_most_reversed_appeal/)

There's a practical problem as well: if the 4th applies, getting warrants just
to check a bag is gonna be a paine. Unless they create different rules for
airports, you can do this but not that.

~~~
furyg3
This is different than a security check. TSA is looking for dangerous, or
banned items - "is this safe to fly?". If they happen to find signs of
criminal activity, they will turn you over to the police. TSA can examine your
laptop, but they can't force you to open files or give them the password. They
also claim that this is voluntary (you're flying instead of driving).

Border agents are making sure you are not a criminal from the get-go. They
have asserted that they can take your laptop bag from you nearly-indefinitely
to do a full forensic analysis, without your consent. This is certainly not
voluntary as all means of transport can result in a border check, and I have a
right to enter my own country.

