FedSoc Blog

Podcast on Border Searches, National Security, & the Reasonable Expectation of Digital Privacy

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by Publius
Posted October 05, 2013, 7:59 PM

On September 25, 2013, the Federalist Society’s Criminal Law & Procedure Practice Group produced a podcast of its Teleforum on “Border Searches, National Security, and the Reasonable Expectation of Digital Privacy.” Participating were Brian Hauss, Legal Fellow at the ACLU Speech, Privacy, and Technology Project, and Andrew J.P. Levy, Former Deputy General Counsel at the Department of Homeland Security. Christian Corrigan, FedSoc’s Director of Publications, served as the moderator.

You can listen to the podcast here.

The subject of the Teleforum was the Ninth Circuit’s decision in United States v. Cotterman, in which the court held en banc that government officials must have "reasonable suspicion" before conducting forensic searches of laptops at the U.S. border. The court's ruling is a departure from the general rule permitting suspicion-less border searches in the interests of national security.

Hauss explained that forensic searches are those that go beyond simply opening up a laptop or similar electronic device and looking at files. Forensic searches include breaking passwords, unencrypting files, and recovering deleted files. To shed light the Cotterman decision, Hauss the earlier case House v. Napolitano, which the ACLU recently settled with the government. According to the facts of the case, David House is an MIT computer scientist who was part of the support network for Bradley Manning, the U.S. Army soldier who was accused of giving secret documents to WikiLeaks. The federal government wanted to question House regarding his connection to WikiLeaks but, according to Hauss, there was no basis for suspecting he was engaged in any criminal activities.

Having set up an alert to be notified the next time House would re-enter the country after he had left, the Department of Homeland Security took House into custody when he arrived back in the U.S. at O’Hare airport. DHS seized his electronic devices, examined them, and took them to DHS headquarters. DHS made a forensic copy of the data and held onto the devices for seven weeks while searching through them. After those seven weeks, the ACLU became involved and set a demand letter to the government that resulted in the devices being returned. The forensic analysis itself lasted seven more months. The ACLU filed a lawsuit making a Fourth Amendment claim that the government required some quantum of suspicion to justify the investigation. The ACLU also made a First Amendment claim on the grounds that the government had targeted House based on his political activities. The District Court held that although no reasonable suspicion was required to search the laptop and similar devices at the border, the continuing seven weeks of custody of the devices did require some reasonable degree of suspicion. The court also held that House had a valid First Amendment claim.

Hauss said that the court’s decision was notable in three ways. First, documents revealed that the government had had no suspicion that House was carrying contraband. Rather, the government’s purpose in searching his laptop was to obtain information it could not have obtained within the country. Second, the case demonstrates just how invasive some laptop searches can be—compare how the Cotterman decision called the search in that case “a digital strip-search.” The search of House’s computer included not just documents potentially related to WikiLeaks but his personal photos, financial information, etc. And third, the government concluded that there was zero evidence that House was engaged in any criminal activity, and that there had been no basis for seizing his devices.

According to Hauss, the Cotterman decision is not a perfect fix for legal questions regarding border searches but it does address a number of problems that arose in House. For one thing, it makes it harder for the government to employ border searches for purposes other than for which they were intended—above all, customs protection. The Cotterman decision also addresses significant privacy and inconvenience issues and it professionalizes the search process, making it more difficult to engage in searches based on impermissible criteria.

Andrew Levy spoke next. He began by providing context for border protection. He said that 4.5 million travelers cross the border a year, and border agents must enforce 600 different laws, including those regarding child pornography, human trafficking, immigration, drugs, intellectual property, espionage, and terrorism. The breadth of those laws is wider than Hauss suggested, he said.

He continued by noting that the Supreme Court has long recognized that the government has an inherent interest in securing the country’s borders, and that there is a “border search exception” to travelers’ Fourth Amendment rights. In practice, any search at the border is per se reasonable (with a few exceptions). Border agents typically have just seconds to decide whether to refer a traveler to secondary screening. Sometimes agents have advanced information but other times rely on what Levy termed “law enforcement expertise, sometimes known as ‘hunches’.” As an example of an important correct hunch, Levy pointed to the Millennium Bomber, Ahmed Ressam. An agent thought Ressam’s behavior unusual, and a subsequent search of his car turned up thousands of pounds of explosives he intended to detonate at Los Angeles International Airport.

Levy said that the investigative tool of searching laptops has in fact been very rarely used. Of over 200 million persons entering the country, only 1,000 laptops were searched. And there were only 46 in-depth searches. These searches have yielded helpful findings, including discovering nuclear information and videos of IEDs being exploded.

Levy made two distinctions. First, the distinction between arriving aliens and U.S. citizens: Although the case law is muddled, there are limitations on the due process rights of aliens. The second distinction is that between ordinary law enforcement and national security. The latter raises the “special needs exception” to the Fourth Amendment, which applies when the purpose of the search is not for ordinary law enforcement—such as drunk-driver checkpoints or searches of schools for drugs for the sake of student safety.

Prior to the Cotterman decision, case law going all the way up the Supreme Court was very clear that the there is a broad exception to Fourth Amendment rights at the border except for non-routine searches—namely, very invasive searches of persons as via a strip-search. Such a limitation of the border search exception had never been applied to the search of property or things. An earlier Ninth Circuit decision made no distinction between paper and electronic data: if all of the contents of a shipping container can be searched, so too can the contents of a laptop. However, no cases had ever touched upon the issue of in-depth searches nor that of the requirement of reasonable suspicion.

In Cotterman, there were four levels of investigation: the initial laptop search, technical assistance (to read encrypted or password-protected files) in-depth analysis, and the copying and retention of data. Levy said that the the degree of suspicion required for a search probably does increase as one moves up the levels.

Levy was concerned that the holding in Cotterman creates a huge loophole for criminals trying to enter the country who wish us ill.  Now they know that all they need to do is encrypt or password-protect incriminating evidence. Levy also said he thought the Cotterman decision creates an unworkable standard: What precisely is a forensic exam? Is it simply breaking into encrypted documents, or does it include analyzing the information one has? He also said the decision is problematic doctrinally since it will apply to border searches more complex than that in Cotterman, which regarded child pornography, the evidence of which is clear on its face. In other areas, however, such as terrorism, the data needs to be translated or otherwise analyzed to know what one is looking at.  He further predicted the decision will have a chilling effect on border agents, who will be less inclined to perform laptop searches due to the risk of litigation.

New Faculty Book Podcast: Limited Government and the Bill of Rights

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by Publius
Posted February 14, 2013, 5:38 PM

Limited Government and the Bill of Rights takes a novel approach to the constitutional connection between the Bill of Rights and principles of limited government.  Author Patrick Garry proposes that the Bill of Rights should be viewed primarily as limiting the power of government rather than protecting of the autonomy interests of individuals.  He argues that this limited government approach is ultimately the best way to maximize individual liberty, and it limits judicial overreach by denying courts the power to create and enforce expansive, autonomy-based rights.

Garry, professor of law and director of the Hagemann Center for Legal & Public Policy Research at the University of South Dakota School of Law, is joined by critical commenter Lee Strang, professor at the University of Toledo College of Law, to discuss the book.

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New Faculty Book Podcast: First Amendment Institutions

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Posted February 12, 2013, 3:46 PM

The book First Amendment Institutions proposes a new approach to enforcing First Amendment laws by arguing that institutions who exercise First Amendment freedoms should have more autonomy to regulate their own affairs, since the courts and a “top-down rules” approach insufficiently account for the complexity of real-world situations.  Author Paul Horwitz suggests that such an approach would enhance these institutions’ role in social and political life, thus making the state a part of our social framework as opposed to an overbearing sovereign.

Horwitz, the Gordon Rosen Professor of Law at the University of Alabama School of Law, is joined by commenter Marc DeGirolami, associate professor at St. John’s University School of Law, to discuss the book.

 

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New Book Podcast: Enlightened Democracy

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by Publius
Posted November 26, 2012, 5:50 PM

With the 2012 presidential election behind us, the unique American presidential election system is fresh in the mind of the public.  Some dismiss the Electoral College as outdated, arguing that the system should be replaced by direct popular vote.  

In Enlightened Democracy: The Case for the Electoral College, author Tara Ross provides an overview of the history of the Electoral College from the Founding Era to the present. She defends the College as an institution and explains how it protects our republic and promotes liberty.  This second edition includes a section discussing the National Popular Vote legislative effort.

Derek Muller, Associate Professor at Pepperdine University School of Law, interviews Ms. Ross about her book.

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New SCOTUScast: In Search of Jefferson’s Moose

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by SCOTUScaster
Posted October 22, 2012, 1:45 PM

In Search of Jefferson’s Moose: Notes on the State of Cyberspace explores the “new world” of cyberspace: what it is, how it works, and what laws it should have.  Author David Post compares Thomas Jefferson’s thoughts on the New World in Notes on the State of Virginia to the internet, drawing out the similarities and differences between the two “new worlds,” and presents Jefferson’s ideal--small self-governing groups loosely joined together and forming groups of increasingly large size--as a model for self-government in cyberspace.

David Post, a Professor of Law at Temple University Beasley School of Law, is joined by critical commenter Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law, to discuss the book.

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New Faculty Book Podcast: When States Go Broke

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Posted September 28, 2012, 7:50 AM

When States Go Broke discusses the problem of fiscal crises in American states and the best way to meet the political and fiscal challenges they present.  The book features insights from leading scholars in a variety of disciplines, and facilitates debate about the origin and context of the crises, and what regimes bankrupt states should adopt.

In this FedSoc Faculty Book Podcast, David Skeel, the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, is joined by critical commenter Richard Hynes, Professor of Law and Director of John M. Olin Program in Law and Economics at the University of Virginia School of Law, to discuss the book.

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New Faculty Book Podcast: Lawyer Barons: What Their Contingency Fees Really Cost America

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by SCOTUScaster
Posted September 20, 2012, 3:29 PM

Lawyer Barons exposes the high but unseen cost of litigation driven by contingency fees, a method of financing that is said to improve access to the courts for personal injury victims with limited means.  Author Lester Brickman argues that there is more to the picture than just improving access, however: contingency fees also enable lawyers and judges to collaborate and incentivize litigation to a degree that distorts our civil justice system and imposes other financial and social costs.  

Brickman, a professor at the Benjamin N. Cardozo School of Law, is joined by critical commenter Peter Schuck, the Simeon E. Baldwin Professor Emeritus of Law at Yale University, to discuss the book.

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New Faculty Book Podcast: Firearms Law and the Second Amendment

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by Publius
Posted August 13, 2012, 3:10 PM

This podcast discusses Firearms Law and the Second Amendment: Regulation, Rights and Policy by Nicholas Johnson, David Kopel, George Mocsary, and Michael O’Shea.  

Firearms Law provides a comprehensive overview of the constitutional right to private firearms, the first traditional casebook on the subject that covers the history and development of the constitutional right to keep and bear arms, and all aspects of firearms law, policy, and regulations.  The book serves as a starting point for discussion of contemporary gun-law issues raised by the Supreme Court’s 2008 ruling in District of Columbia v. Heller, which invalidated a law banning handgun possession in Washington, D.C. and in its 2010 ruling in McDonald v. Chicago, which extended that right to constrain state action.

Authors Nicholas Johnson, a Professor at Fordham University School of Law, and Michael O’Shea, a Professor at Oklahoma City University School of Law, are joined by commentator Adam Winkler, a Professor at the UCLA School of Law, to discuss the book.

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New Faculty Book Podcast: Gunfight: The Battle Over the Right to Bear Arms in America

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by Publius
Posted August 06, 2012, 4:38 PM

Gunfight: The Battle Over the Right to Bear Arms in America tells the story of the six-year courtroom battle that culminated in the Supreme Court’s 2008 ruling in District of Columbia v. Heller, which invalidated a law banning handgun possession in Washington, D.C.  In the book, author Adam Winkler gives a historical overview of the battle between gun rights and gun control advocates, and brings to light what he argues are the often misunderstood legal and historical issues central to history of guns in America.

Winkler, a Professor at the UCLA School of Law, is joined by Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law, to discuss the book.

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New Faculty Book Podcast: Liberty’s Refuge: The Forgotten Freedom of Assembly

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by Publius
Posted July 23, 2012, 2:03 PM

During the past decade, courts have struggled to reconcile anti-discrimination statutes with claims by private organizations for First Amendment protection regarding their missions and membership.  For instance, can the Boy Scouts expel a gay ccoutmaster? (Boy Scouts of America v. Dale)  Can a state law school deny official recognition to a religious club that requires members to affirm certain beliefs regarding homosexuality? (Christian Legal Society v. Martinez)  In resolving these questions courts have frequently invoked the freedom of "expressive association," a phrase that appears nowhere in the text of the First Amendment but has been a part of modern judicial doctrine.  

In Liberty’s Refuge, Professor John Inazu argues that this "expressive association" mode of analysis is at least in part responsible for what he argues is inadequate protection for associational autonomy--and that a return to the more textually and historically grounded "right of the people peaceably to assemble" is necessary to recapture the benefits of a meaningful pluralism.  The Constitution contemplated forcefully dissenting political and expressive groups that would serve as a check on majority rule’s tendency to turn into a force for stifling nonconformity.  To maintain an environment in which these groups will flourish, Inazu contends, our First Amendment jurisprudence must recover a more robust conception of associational autonomy grounded in a better understanding of the centrality and breadth of the assembly right.  

Inazo is joined by commenter Michael McConnell, the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School as well as Senior Fellow at the Hoover Institution, to discuss the book.

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New Faculty Book Podcast: Constitutional Cliffhangers

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by Publius
Posted June 27, 2012, 4:43 PM

Written by Michican State University Law professor Brian Kalt, Constitutional Cliffhangers envisions six constitutional controversies that could arise in selecting, replacing, and punishing a U.S. president.  None of Kalt’s scenarios, such as the criminal prosecution of a sitting president, a president pardoning himself, or a two-term president attempting to stay in power, have actually occurred, though some have come close.  In the book Kalt provides a legal guide to navigating these situations, should they ever occur, and in the process offers insight into pertinent structural and procedural provisions in the Constitution.   

In this podcast, Brian Kalt is joined by critical commenter Seth Tillman, a Lecturer in the Department of Law at the National University of Ireland, Maynooth, to discuss the book.

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New Faculty Book Podcast: The Machinery of Criminal Justice

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by Publius
Posted June 20, 2012, 5:29 PM

The Machinery of Criminal Justice, a new book by Stephanos Bibas, discusses the shift in American criminal law from being a system run primarily by laymen to a system in which lawyers are the primary actors.  The author argues that this shift has increased the speed and efficiency of our criminal justice system, but that softer values, such as reforming defendants and healing relationships, have been lost with the prioritization of efficiency.  Bibas proposes a variety of ways to involve victims, defendants, and the public in the criminal justice process again, including requiring convicts to work or serve in the military and giving more power to sentencing juries over prosecutors.  His suggests that, although these mechanisms may be more expensive, they may better serve the interests of criminal procedure by facilitating the denouncement of crime, the vindication of victims, and the reformation of criminals.

Bibas, a professor at the University of Pennsylvania Law School, is joined by critical commenter Andrew Taslitz, a professor at Howard University School of Law, to discuss the book.

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New Faculty Book Podcast: Taming Globalization

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by Publius
Posted June 13, 2012, 5:12 PM

Taming Globalization discusses the challenge to American constitutional law that arises out of our increasingly global society.  The creation of dozens of international institutions, from the International Court of Justice to border commissions to the World Trade Organization, has given rise to a legal network that poses a challenge for American constitutional law.  In response to this challenge, Julian Ku and John Yoo propose that domestic actors make use of “mediating devices” such as non-self-execution of treaties, recognition of the president’s authority to interpret international law, and a reliance on state implementation of international law and agreements.  These devices, the authors argue, will help us resolve the legal challenges of globalization in a way that minimizes both constitutional and international difficulties. 

In this FedSoc Faculty Division podcast, Julian Ku, a professor at Hofstra University School of Law, is joined by critical commenter Martin Flaherty, the Leitner Family Professor of Law and Co-Founding Director of the Leitner Center for International Law and Justice at Fordham Law School, to discuss the book.

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New Faculty Book Podcast: A Distinct Judicial Power

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by Publius
Posted June 07, 2012, 4:53 PM

Written by Northwestern University Law professor Scott Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary 1606-1787 analyzes the origins of judicial independence in the United States.  The book sets forth both the political theory behind and the historical progression of independent judicial power during the colonial period.  It concludes with an examination of how this mixture of theory and practice coalesced to produce Article III of the U.S. Constitution and a power of judicial review committed to the protection of individual rights.

Professor Gerber is joined by critical commenter Jim Pfander, also a professor at Northwestern University School of Law, to discuss the book.

 

 

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