By Lauren Guicheteau

There are no protections against warrantless and suspicionless searches of electronic devises at the United States’ borders because these searches are not civil rights violations according to the Office for Civil Rights and Civil Liberties (CRCL) for the Department of Homeland Security. The CRCL recently performed an Impact Assessment on the Department’s policy for border searches of electronic devices and released the executive summary of its findings. CRCL examined two Department of Homeland Security directives issued in 2009 that govern policies and procedures for searching, reviewing, retaining, and sharing information contained in electronic devices. This executive summary determined that U.S. Customs and Border Protection along with U.S. Immigration and Customs Enforcement have the constitutional and statutory authority to search travelers, baggage, and containers without a warrant or reasonable suspicion, and electronic devices such as phones or computers are no exception.

The CRCL concluded that these border policies do not violate the First Amendment or the Fourth Amendment. The policies comply with the Fourth Amendment, which protects against unreasonable searches and seizures, because “[t]he overall authority to conduct border searches without suspicion or warrant is clear and longstanding, and courts have not treated searches of electronic devices any differently than searches of other objects.” The CRCL also found that border searches of computers do not violate travelers’ First Amendment rights. They rejected the idea that a heightened level of suspicion should be required before searching computers in order to avoid chilling free speech.

While this assessment is controversial, federal case law supports the CRCL’s conclusions. In United States v. Ickes, the Fourth Circuit Court of Appeals held that there is no First Amendment exception to the border search doctrine for expressive materials. The court justified the border search doctrine because the sovereign has a right to protect itself. Contextualizing its decision in the modern world the court explained that “national security interests may require uncovering terrorist communications, which are inherently ‘expressive.’” Fourth Amendment concerns surrounding the search of electronic devises were address by the Ninth Circuit Court of Appeals, in United States v. Arnold, which explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border. The court held that searches of electronic devices are equivalent to searches of property, rejecting the defendant’s argument that searching files on a laptop computer intrudes upon a traveler’s privacy interests and dignity to the same degree as searching a traveler’s body. Therefore, searches of electronic materials at the border are only limited in that the search may not (1) cause exceptional damage to the property, and (2) be conducted in “a particularly offensive manner.” Analyzing these exceptions, the Ninth Circuit explained that searching through personal electronic information does not constitute an “offensive search.”

However, many people see electronic devises as unique in their vast storage capacity of personal information and the ability to track its user’s preferences and habits, which should distinguish them from other types of baggage. The CRCL’s current assessment only furthers the belief in a growing “Constitution Free Zone” around the U.S. border. The ACLU currently has two lawsuits pending before federal courts, which challenge the current border search policy by asserting that laptop searches are so invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion.  Additionally, the ACLU has filed a request under the Freedom of Information Act for the full Impact Assessment Report. The contentious nature of the CRCL executive summary highlights the important civil rights issues raised by technological advances and how these advances continue to shape how courts view and interpret the Constitution.

Photo Credit: Michael Ochs Archives

By Scott Kennedy

Spend enough time following YouTube links, and you will know disappointment: “This video is no longer available due to a copyright claim by . . . .” Copyright owners, especially big ones, routinely monitor online media exchange platforms for their intellectual property. When they find a video or recording posted without permission, they can demand the website remove it. But some web users think enforcement efforts are going too far. Sometimes copyright owners demand removal even of original content incorporating only a small amount of copyrighted material.  A pending lawsuit, Lenz v. Universal Music Corp., has become a focal point of this controversy. After a summary judgment ruling this week by the U.S. District Court for the District of Northern California, the case seems likely to go to trial. Continue reading →

By Jessica Belle

While the New Mexico legislature is considering a bill to ban sex offenders from using any social media site, the Seventh Circuit struck down a similar Indiana law as violating Indiana registered sex offender’s right to free speech. Although Facebook and other social networking sites have successfully worked with state attorneys general on removing sex offenders from these sites, the most recent waive of state legislation indicates that prosecutors and other members of the community think the technology community is not doing enough. The crux of the issue is how much, if any, online free speech registered sex offenders should have.

The Indiana law at issue in the Seventh Circuit’s opinion prohibited a registered sex offender from using “social networking site[s]” or “instant messaging or char room programs” if the sex offender knows those under 18 years of age are permitted to access these sites or programs. This law was enacted in 2008 and broadly applies to anyone required to register as a sex offender, § 35-42-4-12(b)(1)-(2), with an exception for sex offenders who were close in age and had a consensual relationship with their victim, § 35-42-4-12(a). Though all parties agree that Indiana has an interest in protecting children from convicted sex offenders, in this case the Seventh Circuit held that the State too broadly limited the rights of sex offenders.

The case was brought as permanent injunction against the law by a class of sex offenders currently not subject supervised release and to whom the law in question applies. Following a bench trial with only four witnesses—two class members and two social media experts—the federal district court judge found the law was “narrowly tailored to serve a significant government interest.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

On appeal, the Seventh Circuit found that the law bars registered sex offenders from expressing themselves through social media and inhibits their ability to receive and exchange information. Holding that the Indiana law is be content neutral, the court applied intermediate scrutiny and found the law was not “narrowly tailored to serve a significant government interest.” Ward, 491 U.S. at 791. Instead, the Court held that the “law targets substantially more activity than the evil it seeks to redress” and therefore violates the registered sex offenders’ First Amendment rights.

The Seventh Circuit opinion accords with the two other federal rulings on other state laws restricting registered sex offenders from using social media. In February 2012, Chief Judge Brian Jackson held a Louisiana law that prohibited registered sex offenders from “using social networking sites, chat rooms and peer-to-peer networks” was “unconstitutionally overbroad and void for vagueness. However, just a few months later Louisiana passed a new, narrower law requiring registered sex offenders to list their status on social media.

In October 2012, senior U.S. District Judge Richard Kopf stuck down a Nebraska9 law that sought to limit sex offenders—whose crimes were against children—from using the Internet. The Nebraska law that required these sex offenders to inform the government any time they post online, consent to search and monitoring of all remote communication devices and refrain from any use of social networking sites, instant messaging and chat room programs that a minor could access. Judge Kopf held these provisions were not narrowly tailored to achieve the State’s interest and raised other constitutional concerns. Other states like Illinois prohibit the use of social networking sites as a condition of sex offenders’ parole.

There has been no move to request cert review by the U.S. Supreme Court of the Indiana case. However, the debate over registered sex offenders’ right to free speech online continues across the nation. Technology companies should play close attention to this debate as they may be forced to assist states that seek to enforce laws limiting sex offenders’ access to certain online sites and programs.

Image Credit: Yells Fire in a Crowded Theater

By Bryan Russell

In the midst of Superstorm Sandy, someone anonymously tweeted: “BREAKING: Con Edison has begun shutting down all power in Manhattan,” and “BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter.” Both of these statements were patently false—outright lies.  Continue reading →

One of our blog readers saw our article on cyberbullying and recommended 15 Strategies Educators Can Use to Stop Cyberbullying as further reading on the topic. The article is educator focused but as cyberbullying becomes more common, the responses suggested may well grow to represent the institutional standard of care.