Border crossings are a great place for government bureaucrats to harass the citizenry. Over the past several years, most of us have heard horror stories in this regard. I highlighted several stories of border crossing concerns last year, with the two most interesting being:
One of the greatest fears of activists, journalists and average citizens alike, is that some border patrol agent can confiscate your electronics on a whim and then use sophisticated software to break your passwords and look through all your personal files and data. Fortunately, the Supreme Court just let stand the ruling by an appellate court, which ruled that a deep forensics analysis of one’s electronics can only occur if there is “reasonable suspicion” of criminal activity. That’s at least a start in the right direction.
Without issuing a ruling, the justices let stand an appeals court’s decision that U.S. border agents may indeed undertake a search of a traveler’s gadgets content on a whim, just like they could with a suitcase or a vehicle. That is known as the ”border search exception” of United States law, where travelers can be searched without a warrant as they enter the country. The Obama administration has aggressively used this power to search travelers’ laptops, sometimes copying the hard drive before returning the computer.
However, in a rare win for digital privacy, the 9th U.S. Circuit Court of Appeals’ ruling last year concluded that a deeper forensic analysis by border officials using software to decrypt password-protected files or to locate deleted files now requires “reasonable suspicion” of criminal activity — an outcome the justices refused to tinker with today.
That means, in essence, the authorities must have some facts, rather than a hunch, that illegal activity is afoot to perform a forensic analysis on electronics seized along the border of the western United States.
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