Protecting Data at the Border Act: What rights do we have at the border?

The Protecting Data at the Border Act was introduced on Tuesday April 4, 2017.  This Bill intends to make it harder for Border Patrol Agents to demand United States Citizens traveling in and out of the United States to provide passwords to unlock computers, and cellphones, or to provide passwords for social media accounts, to enable search and copying of data contained within.  Customs and Border Patrol Agents are allowed to search U.S. Citizen’s digital devices such as cellphones and laptops without a warrant.  “According to a NBC report Customs and Border Protection conducted more than 23,000 electronic searches in 2016. More than a 400% increase over the previous year”, Jordan Rudner reported for the Dallas Morning News on April 5, 2017

The Fourth Amendment to the United States Constitution protects U.S. Citizens against unreasonable search and seizure by the government of places or things that a United States Citizen would have a reasonable expectation of privacy therein.  In order for the government to perform a search they must obtain a warrant by showing probable cause that the place or thing to be searched will provide information about illegal activity.

The Supreme Court ruled in 2014 that the Fourth Amendment protection of citizens against unreasonable search and seizure without a warrant also extends to cellphones. Riley v. California 134 S. Ct. 2473 (2014). Border Control Agents do not fall under this ruling. Searches of U.S. Citizens and other peoples arriving and departing the United States are considered reasonable because they are happening at the border, or at an international airport. Customs and Border Protection agents do not need reasonable suspicion of illegal activity, or a warrant before searching personal effects including computers, or other personal devices such as tablets or phones.

The Supreme Court has not yet decided the issue, but several courts have ruled on whether a reasonable suspicion of criminal activity is required to search a traveler's laptop at the border, they have decided that reasonable suspicion is not needed. E.g., United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008); 455 F.3d 990, 997 (9th Cir. 2006); United States v. McAuley, 563 F. Supp. 2d 672, 979 (W.D. Tex. 2008).

Immigration and Customs Enforcement as well as Customs and Border Protection have policies in place that deal with searching electronic devices at the border or United States entry or exit point.  Immigration and Customs Enforcement policy states that copies of data and device searches will be completed usually within thirty days. Customs and Border Protection policy states that copies of data and device searches will be kept for a “brief, reasonable” amount of time to be searched on or off site for generally no more than five days.

There are ways that you may protect your data from being searched upon entering or leaving the United States. Marcia Hoffman in an article for Electronic Frontier Foundation lists several:

1.  Carry as little data as possible

2.  Keep backup of your data elsewhere

3.  Encrypt the data on your device

4.  Store the information you need somewhere else, then download it when you reach your destination

5.  Protect the data on your devices with passwords

If you refuse to decrypt information or provide a password to an Immigration and Customs Enforcement agent or a Customs and Borders Protection agent there are probable consequences. You may be allowed to continue on. Your device may be seized and you will be allowed to continue your trip.  Or you may be detained.

 The Center for Democracy & Technology (CDT) supports the bill and believes, as the bill’s sponsors say, that our “Constitutional rights shouldn’t disappear at the border.” “A search of your cell phone or social media account is a direct look behind the curtain that covers the most intimate aspects of your life. A border stop shouldn’t be an excuse for extreme surveillance such as downloading the entire contents of your phone. This bill would ensure that the government demonstrates a good reason for searches at the border, and that a judge agrees,” said Greg Nojeim, CDT Director, Freedom, Security, and Technology Project

Electronic Frontier Foundation

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November 24, 2010 | By Marcia Hofmann

Jordan Rudner Dallas Morning News April 5, 2017

www.scribt.com/document/344171536/Protecting-Data-at-the-Border-Act

Civil Commitment in District Court: What is required under Sec. 35?

IN THE MATTER OF G.P.

473 MASS.112

SEPTEMBER 10, 2015 – NOVEMBER 5, 2015

SUFFOLK COUNTY

FACTS:

May 4, 2015, District Court Judge held a hearing on the petition on the day it a filed. Dr. Saemann, a designated forensic psychologist, had examined G.P.  Dr. Seamann testified at the hearing that the family believed that G.P had been using heroin for two years, that she was despondent and threatening to kill herself if she couldn’t get heroin, had stolen from the family to get money for heroin. G.P. had tried to detox on her own the previous week and had become very sick, had daily used heroin since then. Family is concerned about G.P.’s three year old child. G.P.’s mother stated that G.P. had pushed her.  G.P. admitted to having a heroin problem for the past two years and that she suffered from anxiety and depression but was not presently taking medication, also had Hepatitis C, and that she was neither homicidal nor suicidal.  Dr. Saemann found recent needle marks on G.P. and in her opinion G.P. met the requirements of sec. 35 for commitment. The Judge ordered G.P. committed.

G.P. appealed the commitment order to the Appellate Division of the District Court, which denied relief and dismissed the appeal on May 21, 2015.

G.P. filed her appeal for relief under G.L. c.211, sec.3 on June 1, 2015 naming the New Bedford District Court as the respondent.

ISSUES:

1. The standard of proof required at a commitment hearing under G.L.c.123, sec.35

2.  Whether the rules of evidence apply in a hearing on a petition for commitment pursuant to G.L.c.123,   sec.35

3. The route of appeal from a decision ordering civil commitment under G.L.C. 123, sec.35

4.  The proximity in time of the evidence of, threats of, or attempt at, suicide or serious bodily harm to the respondent and the proximity in time of the evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them necessary to establish a “likelihood of serious harm”, G.L.c.123. sec. 1 to the respondent or others for and order of commitment to issue; and

5. The quantum of risk necessary to establish “a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community See G.L. c. 123 sec. 1,35

HOLDINGS/ RATIONAL:

1.     The uniform sec. 35 rules mandate use of a “clear and convincing” standard of proof, i.e. that the judge must find proved by clear and convincing evidence the facts supporting determinations that the respondent is an alcoholic or substance abuser and that there is a likelihood of serious harm directly resulting from his or her alcoholism or substance abuse. See rule 6 (a).  The clear and convincing standard must be accompanied by a showing of the facts establishing the “likelihood of serious harm” and are “highly probably true”. See Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588 (1977).

2.     Rule 7(a) of the uniform sec. 35 rules provides that the rules of evidence shall not apply to sec. 35 commitment proceedings, except for privileges and statutory disqualifications; this rule also states that hearsay evidence is admissible and may be relied upon if the judge finds it to be “substantially reliable”. See Commonwealth v. Patton,  458 Mass. 119, 132-133 (2010)

3.     G.L. c. 123. Sec. 9 (a) “matters of law arising in commitment hearings …in a district court may be reviewed by the appellate division of the district courts  in the same manner as civil cases generally".  Rule 11(a) of the uniform sec. 35 rules essentially incorporates these provisions but further specifies that, on request, the Appellate Division is to “expedite” consideration of any sec. 35 appeal.

4.     G.L. c. 123,sec 1 “Likelihood of serious harm” (1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection  is not available in the community”.  To establish a likelihood of serious harm under the first or second prong, a showing of imminence is required. The petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent’s alcohol or substance abuse.  Imminence need not be immediate. What must be shown is a substantial risk that the harm will materialize in the reasonably short term, in days or weeks, not months.

5.     Under the third prong the harm is “physical impairment or injury’ to the respondent, and the “very substantial risk” of such harm is to be shown by evidence that (1) the respondent’s judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect themselves from physical harm and (2) the respondent’s community does not include reasonably available external source of adequate protection. G.L. c. 123 sec. 1.  Focus of evidence is to be on respondent’s degree of impaired judgment due to alcohol and/or drug abuse, the degree likelihood that, as a direct consequence, the respondent will sustain or inflict injury, and the inability of any other person in the respondent’s community to provide protection against such risks. The imminence of the risk becomes a factor that is even more important to consider than it is with the other two prongs because a “very substantial” risk of harm must be shown to satisfy this prong.

Petition for relief is dismissed as moot