But reasonable suspicion isn't probable cause, which is the whole point. So, to take the foreseeable question in light of current technical realities, is seizing data at the border so that you can search it later if you develop reasonable suspicion acceptable or not? Your efforts to make all this equivalent to some other form of searching don't help you. You are speculating, merely predicting the behavior of courts. Do you take as a methodological assumption of this process that the courts whose behavior you are predicting will have learned nothing about the facts at hand, and will only reason by narrow analogy to prior unrelated factual situations?

Is this "would appear" to be a descriptive statement about the discoverable state of law? If so, I missed where the cases were discussed that showed this apparition. If this is a statement of legal speculation, as I believe, does it square with any observed phenomena? What will courts think of seizing a terabyte in data image order to decide later, if more than reasonable suspicion develops, that it would be a good idea not to throw it out after 24 hours, or 30 days, or whatever? It is feasible to ask, in other words, whether if govt detained a small percentage of devices at the border long enough to suck up an image of the data contained (from seconds to hours, depending) in order to have it available for searching if, at a subsequent time, they developed a reason to seek a warrant, that would violate the Fourth Amendment or any other statutory or constitutional rule. If yes, why, given that they can certainly do this with a crate of eggs? If no, what difference does all this other bullshit really make?

On encryption, I think you are still asking yourself an old question: whether I can be compelled, without offending the Fifth Amendment, to decrypt my hard drive at the border. Once again, the question seems to me harder than it is non-obsolete. When I actually cross a border I am concerned about, whether the US, Chinese or other, no secret policeman on earth can compel me to decrypt the hard drive, because I am literally unable to do so. I could, thirty minutes earlier, on the plane; I will be able to again, after I have crossed the border, with assistance. But on the border, do what they will, I cannot. How do I technically achieve this outcome? Once you have thought that problem through, and have invented the answer which is simple daily familiarity to me, what is the rest of that old bullshit really worth, either?

The Safeguards of the Fourth Amendment?

The Safeguards of the Fifth Amendment

It is a border, after all. It would be odd to suppose that law with strong identification with place wouldn't be place-sensitive at the border. So?

Why should the government's authority to investigate data at the border be any different, from a constitutional point of view, than its authority to inspect, tax, and identify goods and persons? Is there some constitutional provision that you are depending on without mentioning?

The more commonplace encryption, the less its use justifies any conclusion at all.

I don't understand why, if one is using technology in a sensible way, one's data wouldn't always be encrypted, regardless of the likelihood of crossing a border. All the data on any computer I have anything in is always encrypted.

The Border Search Doctrine and Data

-- By ArchanHazra1 - 06 Mar 2015

Introduction

The border search doctrine carves out an exception to the Fourth Amendment’s requirement of either a warrant or even individualized suspicion prior to search and seizure. The Supreme Court has often articulated the broad authority that the federal government has in searching those that enter the United States: “[s]ince the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or warrant, in order to regulate the collection of duties and to prevent the contraband into this country.” United States v. Montoya de Hernandez, 473 U.S. 531, 536 (1985). Indeed, Congress has used broad language to grant discretion to customs officers in safeguarding the borders. 19 U.S.C. § 1581(a), for example, grants officers the ability to “go on board of any vessel or vehicle . . . to search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board.” So while the Fourth Amendment ordinarily offers some protection against search and seizure, the protections it offers at the border are basically nonexistent. And at first blush, there is no reason to think that the protections it offers to one’s data are any less non-existent—even in the aftermath of Riley v. California.

Digital is Different

Digital is different is a common mantra of privacy advocates. In his concurrence in Riley, Justice Alito felt that “the Court’s broad holding favors information in a digital form over information in hard-copy form.” He noted that the police can seize and examine incriminating snapshots in a wallet, but would be unable to examine such snapshots if they were stored on a cell phone. 134 S.Ct. 2473, 2497 (2014). But this ignores the fundamental difference between electronic devices and non-electronic mediums of storing information: the former “are capable of storing warehouses full of information.” Cotterman, 709 F.3d at 964. The former are capable of storing a person’s entire digital life—work files, photographs, emails, movies, music, browser history, etc.—making every small preference readily apparent. This is why allowing for the search of electronic devices without suspicion under the border search doctrine would be an affirmative step in extending its scope. A large number of Americans—lawyers, journalists, scholars—who travel internationally with sensitive information. Someone operating under the auspices of the First Amendment should not have to fear the possibility that the government is trawling through his or her encrypted data to dig up dirt.

The Supreme Court, however, has never examined the question of whether the border search doctrine extends to data, such as that retrieved from the computer or cell phone of someone looking to enter the United States. The Fourth Circuit, in United States v. Ickes, found that the “cargo” language extended to a hard drive found in the defendant’s laptop, affirming the right to search through it. The Ninth Circuit, though, has drawn a distinction between “cursory inspection” and the “comprehensive and intrusive nature of a forensic examination.” United States v. Cotterman, 709 F.3d 952, 962 (9th Cir. 2013). In that case, while the border agents did initial searches of the laptops—and did not find anything—they also created copies of the hard drives. The government, at that point, conducted a forensic computer search, a time-consuming process that is as follows (as detailed by the court in United States v. Saboonchi, 990 F. Supp. 2d 536, 547-548 (D. Md. 2014):

1) A “bitstream” copy or “image” of the original storage device is saved as a “read only” file.

2) Special software is used to search the full contents of the drive.

3) The “slack space” of the drive is probed for any deleted files.

The thoroughness of a forensic search raises the question of whether it requires any indicia of suspicion under the border search doctrine—simply opening up someone’s laptop at the border and looking through the files certainly does not. The Ninth Circuit thinks there is a difference, which is why it found that reasonable suspicion is required for the government to be able to do a forensic search—going so far as to call it a “computer strip search.”

Using Encryption to Safeguard One's Data

So what does this mean for the international traveler? It’s hard to tell considering that only one circuit has looked at whether forensic data searches can be conducted without suspicion. One important question to ask is what happens when one’s data is encrypted. At the very least, someone can encrypt his or her files, thus preventing a “cursory” search and requiring a forensic search. The Ninth Circuit in Cotterman found that the commonplace nature of password-protected files—for business travelers, students, and even casual computer users—meant that the government could not simply rely on the existence of encryption to find suspicion. On the other hand, the Cotterman court did assert that the existence of encrypted files—in conjunction with “other indicia of criminal activity”—can be used to find suspicion. 709 F.3d at 969. And courts are likely to be deferential to the authorities’ determination of suspicion Nonetheless, when crossing the border, encrypting one’s files may be the best means—short of just leaving them at home—of keeping one’s files out of government hands.

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