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

Consenting to a search

It’s late at night and you are driving home from work. After a long shift there is nothing more that you want to do then put your feet up and relax. However before you can reach your driveway your rearview mirror lights up with blue flashing lights. You are being pulled over. The officer approaches your vehicle and in a cliché manner asks, “Do you know why I pulled you over?” This is one of the many tricks an officer has in their disposal to uncover any illegal activity you may or may not be a part of. In a calm, polite manner, always answer in the negative and state you do not know as to the reason for the traffic stop.  After a brief moment, the officer states that you have a faulty taillight and asks to see your license and registration. After returning from the cruiser, the officer proceeds to ask if he can search your vehicle. It is at this moment that many people forfeit their constitutionally given rights against unwarranted search and seizure as many mistake the officers request as a command. Again in a calm polite manner, one should always refuse an officer’s request to search your vehicle, even if you have nothing to hide. During a search, property may be damaged or evidence planted. In order to search your vehicle without a warrant and your consent an officer must posses Probable Cause. This entails that the officer have a level of reasonable belief based on facts or evidence that can be articulated that would lead a reasonably intelligent and prudent person to believe the person has committed a crime. Common examples of probable cause include the sight or smell of contraband in plain view such as a baggie containing drugs or plain smell or an admission to a crime. There are four categories into which evidence may fall in establishing probable cause: observational, circumstantial, expertise, and information. The first, observational, is as previously described when an officer through their senses observe anything that constitutes a potential crime.  Circumstantial and expertise evidence is based on the officer and known facts such as gang tattoos or other markings that culminated together gives a reasonable impression a crime has or will be committed. Finally an officer may have probable cause if he were made aware to information through an informant or witness of a crime committed. Overall, there are many tools an officer has to their disposal in order to either legally search your vehicle or trick you into giving consent. It is your right to refuse such violation of your privacy but never attempt to physically stop an officer from conducting a search, legal or not. Instead contact Boyle & Carbone, PC. We will fight to have any evidence suppressed, but it all starts with “no, I do not consent.”  

The Valor Act

The Valor Act of Massachusetts, also known as senate bill 2254, was passed on May 31, 2012. The act is an alternative to handling a case through the criminal-justice system. Whereas a typical criminal case functions primarily to determine the guilt or innocence of the accused, a pretrial diversion program, which the Valor Act is, focuses on treating, educating, or otherwise improving the accused’s life. There is no admission or finding of guilt and thus no criminal conviction. Before or on the day of arraignment is when one would seek protection under the Valor Act. To qualify, one must satisfy several requirements, which include: being an active member of the armed forces or a veteran as defined by Massachusetts statue, must be accused with a crime punishable by imprisonment and be charged in a district court, must have no prior criminal convictions, outstanding warrants, or pending criminal cases, and finally, there must be a program recommendation that the accused would benefit from. While a judge does have discretionary power in ruling whether to approve the pretrial diversion program, it is up to the defendant to rise claim and show that all the requirements are met. The judge may issue a 14-day continuance so for the defendant to prove they are either active armed force personnel or a veteran. For the exact wording of the Valor Act one should look to Massachusetts General Law 276(A), which spells out exactly who is qualified under the act and how one would go about seeking relief through the act. If you or a loved one has found yourself dealing with a first time offense and are or were a member of the armed forces and you think you qualify under the Valor Act, contact Boyle & Carbone, P.C.

Policing the Police

The National Anthem: a song chosen to represent the symbol that is our United States has since recently been the point of discussion for many Internet rants and memes. A song, chosen to pay tribute to the men and women who have fought and in many cases died to protect the very freedoms we as Americans get to enjoy, now being used as a platform for protest.  On August 26 of 2016, Colin Kaepernick, a quarterback for the San Francisco 49ners, was first given recognition for his refusal to stand for the anthem during a national football game as a form of protest. A protest against an issue that Kaepernick felt detracted from the symbol the song was meant to represent. Not alone in his opinion, Kaepernick was drawing attention to an issue of police brutality and a spreading notion that the rights of this country are not reserved for all. The primary focus of the protest stems from a wake of recent deaths of unarmed African American citizens, such as Eric Garner and Michael Brown, at the hands of police officers.  While the deaths of these unarmed men did raise tension between police officers and minority groups, it was the action, or rather inaction, of both city officials and police forces to curb abusive and excessive force of some officers that rooted the issue into mainstream culture. As many journalist and law professors, such as Craig Futterman and Lydia Lyle Gibson note, the lack of repercussion taken against these few officers results in lost trust and respect for the police force as a whole. As Gibson and Futterman mention in their article “Policing the Police”, the “code of silence” among police officers has resulted in many good officers being lumped in with those society deem as bad officers because they are viewed as protecting the lies and sins of those that harm everyday people.  A lack of transparency between police and the people have not helped to better the issue either. Tension is exasperated when video evidence is not available or not made available to the public until after facts and opinions have been widespread for sometimes months in advance and then it is revealed that officers did partake in questionable actions. As Futterman and Gibson mention, many times complaints against an officer are either found to have no standing or result in minor disciplinary actions. Futterman goes on to mention that in Chicago, the focus of their article and a focal point for the anti-police brutality movement, the rate of discipline is about 3 percent in a system of nearly 60,000 complaints. It becomes even more apparent of the lack of discipline being exerted on the issue of police brutality when coupled with the fact that more than half of the disciplined complaints were for personal violations such as being late for work or wearing their uniform wrong.  Furthermore, complaints made by white citizens which only make up about 20 percent of the total number of complaints made up about 60 percent of allegation found to have merit. Feeling both ignored and betrayed by those who are meant to protect and serve, minorities behind voices such as Colin Kaepernick have decided to sit in order to stand up against an issue that should cause alarm to all Americans. Police brutality is of real concern as it goes against the very ideals the United States represent and that is liberty and justice for all.