 All right folks without further ado I present you the EFF. Thank you. Thank you. Thank you very much We are here to talk today about searching and seizing your laptop. I saw that Well pretty much all of you Let's see is that any better? All right, so we're we saw almost all of you if not all of you have laptops And this is something in which you are a lot of personal information is stored inside that laptop And it is something which you want to keep private and to the question Where we're at today is when can the government get access to that information? And we're going to start with first principles here here in the United States We have the fourth amendment the fourth amendment limits the ability of government to search and seize evidence Without a warrant and it protects against unreasonable searches and seizures So there's a port number of key words there What is reasonable? What is a search? What is a seizure? And so over the last couple hundred years courts have been looking at what the fourth amendment means and expanding upon the these rules So starting out with some of the basic definitions. What is a search a search occurs when you have a expectation of privacy and That expectation is infringed Sorry expectation that society is prepared to consider reasonable and that is infringed and a seizure is when there are some Meaningful interference with your possessory interests in the property So a key phrase that has evolved over the years is the reasonable expectation of privacy and this phrase comes up a lot in court cases It occurs when you have an actual subjective expectation of privacy you actually believe that it's private But even if you actually Honestly believe it's private you also have to have an expectation that society is prepared to recognize as reasonable And so this means that you can't just unreasonably believe that something is private and and get the benefit of this of this fourth amendment so Ordinarily if you have a reasonable expectation of privacy the government must tame a warrant or Fall within one of the exceptions to the warrant requirement The good news is that as a general matter and as a starting point you have a reasonable expectation of privacy In the contents of your laptop. So yay you have to the government either has to get a warrant or fall within one of the Exceptions and some of the reason for this is because the courts have recognized that a personal computer is a repository for private information the computer's owner does not intend to share with others and For most people I'm quoting from a court case here for most people their computers are their most private spaces and that was recognized by Court out of the 10th circuit in the United States versus Andres and this is the case in which EFF filed a Amicus brief a friend of the court brief to help convince them to do the right thing So you start out in this good place But then the question is when will you lose that? There are a couple ways that you can lose it just to begin with You can lose it if you are sharing so if there's a shared drive on your computer and you're sharing it with others Courts might find that to mean that you have Put that outside of the scope of your reasonable expectation of privacy if you are sharing files over a peer-to-peer network Courts might say that that those files are outside of the scope of where you have a reasonable expectation of privacy And then you can give consent So even if you start out with a reasonable expectation of privacy if the government comes along says hey Can we search your laptop and then you say yes? Well, then the fourth amendment isn't going to protect you much after that point however Consent can be revoked at any time prior to the search being completed. So if you're feeling some pressure you Ended up saying yes, you can search my laptop and then have a few moments to think about it and decide really nice Wasn't a good idea you can revoke it until the the search is completed That's right think back to this thing. Oh, yeah, maybe I shouldn't have consented to that and you probably shouldn't consent to it If there are multiple users of a computer is a general matter any one of them could consent So if you if you have a computer that is shared with others if others have access privileges to it Then you have to trust everybody with access privileges to not give consent In inappropriate circumstances However courts have recognized that that consent is not for everything in the computer If you've taken measures to show that you're still expecting privacy. So if your files are encrypted Password protected such that someone has access to your computers But not access to all of the files on the computers their consent only goes so far as they're authorized to access so this is a good reason to have Encrypted files on your computers and make sure you're not giving those passwords to to other people a Couple other consent circumstances if you are a minor if you're under 18 parents can consent on your behalf Generally spouses can consent for each other, but again if you have a password protection or other Encryption that will keep the spouse from being able to access the files the spouse can only consent to the extent they have the access and sometimes consent can be Implicit so You know be careful as to as to what you were saying and probably it's best if there's a Circumstance in which consent may be coming up and you want to be maximum protection of your rights You want to be clear that you are not consenting So for example in a case where someone invited a officer to Take a look at the computer You know it might have been argued that the consent was simply to perhaps open it up and take a brief look around but when the officer continued to look deeper and start opening files and examining them and The defendant failed to object to the more thorough search Court found that the consent had expanded to that and another case was a case involving consent to search a car and The court said okay Well, you gave consent to search the car and so that included the the memory of the cell phone that was in the car Now what we're talking about so far is government searches now There's another category of searches private searches and the fourth amendment doesn't protect you against Private activities, you know unless they're the private person is acting as an agent of the government And Jennifer is going to talk more about private circumstances, but let me briefly go through some of the exceptions to the warrant requirement So if a search is not going to be found to be unconstitutional Even though it doesn't have a warrant if it falls into one of the various exceptions One is exigent circumstances. This means that there is a sort of an emergency Where the evidence is an imminent danger of being destroyed? The there's a threat to the police When the police are in hot pursuit of a suspect the suspect is likely to Flee before the officer can search Do a search warrant? Courts have found that these emergency circumstances can allow for a warrantless search But in general dealing with laptops, this is enough to support the warrantless Seizure they can grab the laptop But then they properly should hold on to it until they can secure a warrant later if they can secure a warrant later And and not do a search until they've gone through the process of getting that warrant One of the arguments that has come up in a laptop context with this is the government has argued that The possibility of the battery might die Requires them to to search the computer Quickly because who knows what might be lost if the battery dies as opposed to supposed like finding a plug And the next category of exceptions to the search requirement is search incident to arrest and You know this this is generally a category for when the You know that they're taking somebody into custody. They're looking for like weapons or things like that on their person Something that could be used to affect their escape like their lockpicking set Or if there's a need to prevent the the loss or destruction of evidence and so this Can be a fairly limited exception so for example, there was a case in which the the officers grabbed a footlocker and They searched it 90 minutes after the arrest and of course that was not a search Incident to the arrest you know has to have a certain amount of immediacy to it And so it doesn't give the police free reign to search anything For investigatory purposes has to be Limited so there was a recent case which is about cell phones of someone analogous to searching laptops Where the the Northern District of California federal court? Said that the exception should be address the need of law enforcers to seize weapons or other things that might be used to assault an officer Effect an escape as well as a need to prevent the loss or destruction of evidence And therefore they found that cell phones were were protected by the Fourth Amendment Because they didn't fall within that category and the court also importantly noted You know good policy reason before behind this is that cell phones can store highly personal information Can record the most private thoughts and conversations through email through text of voice and instant messages And of course all these things also apply even more so to laptops Couple of the categories plain view This is if the the government is looking for one thing But then sees another thing while while they're in the in the course of looking at it And Jennifer will talk a little bit more about the plain view exception There is a border search exception so your rights are different when you're crossing a border And Marshall will discuss that in more detail And then in addition to your fourth amendment rights There are also some statutes that can protect your your information and Kevin will talk a little bit about more about those So with that I will turn it over to Jennifer It's this one work. Okay. Hi everybody. Thank you Kurt Um, I'm gonna talk a little bit about some examples cases that EFF's been involved in or that I was involved in before I came to EFF there are some examples of computer searches and just hope that these illustrate a little bit some of the difficult questions So one of the things you know, we're talking about with it in terms of consent or Expectation of privacy has to do with when computers are shared. So I think for most of us We have our laptops. We may be the only person who uses our laptop But if you have a home computer you might share it with your roommates or your spouse or somebody like that and have Different accounts on the machine. How many people here have a situation like that? They have some computer that they have shared accounts on with other people Okay, so you guys are probably thinking into yourselves. Who can I really trust? You know, can I trust these these people I have shared accounts with not to crumble when the cops come to the door and want to Search my computer and and what is the effect of having different accounts on the machine? Because password protection is complicated right something could be password You might need a password to access it because it's encrypted Or you might just need a password to access it because the machine set up to have different accounts and this was the issue that we dealt with in the Andres case in this case the Police came by and got consent from the aged father of the defendant to search and seize the computer That was at that house and mr. Andres had had an account on the machine That he had to log into when he was surfing his child pornography The father was not actually authorized to use the machine he didn't know how to use a computer or anything like that but the police took it and they searched it anyway and You guys may or may not know this but the forensic software that the FBI uses to do computer searches end case doesn't actually respect the divisions of password protected accounts or accounts on the machine in the same way that the user might approach it if you were just to Go to the machine and type on the keyboard and see that it you know has a list of people who are there to be allowed to use it so The question was was the consent of the father Adequate enough to give police access to the rest of the machine so that they could get a hold of the evidence that they had About against mr. Andres based on the consent exception and not on the fourth amendment And not by and without having gotten a warrant And and you know there I think for the court There is a real issue about what the officers knew or should have known at the time that they took the machine from the father And what was right there so the thing there technologically that I think it's the lesson to learn is that even if you have if you have Accounts separate accounts that may help you show that you have an expectation of privacy Curt and I share a computer. He doesn't have access to my stuff. I don't have access to his stuff I still have an expectation of privacy. I haven't shared it. What if we share it a little bit? If we share it a little bit, I'll talk about that in a second But but then the question is even technologically if the police come in and they seize the machine because they have probable cause to Search stuff about Curt or because Curt gives them a consent. What does that mean for me? And I think one of the real problems we see is that technologically the forensic software hasn't been configured to respect that You know kind of reasonable conception that people normally have about what it means to have different accounts on the computer Technological protections are often some of your best ways to assure privacy where the law kind of fails And this issue is still being really kind of litigated and hashed out in the courts It's not it's also kind of a more subtle question as to what happens if you share a little tiny bit And this was a case that I was involved in before EFF United States versus Heckenkamp Where mr. Heckenkamp had his computer attached to a school network at just in the dorm room and the school network had an acceptable use policy that said well, you know We the school administrators can look at your machine a little bit if we want to to ensure the health of the network But not necessarily for other reasons and this is a real issue We litigate against the government all the time Which is what is the effect on the reasonable expectation of privacy and therefore whether the Fourth Amendment has any role to play whatsoever When you've given somebody Access for a little tiny for some reasons but not for all reasons and the government always are usually argues that It's all or nothing kind of thing like you know I always say it's like inviting a vampire into your house Like if you don't invite them in they can't come in at all But if you say oh come in but just for a cup of coffee they can run them up and do whatever they want And that's the government's view like once you let us in we can run them up and we can do whatever we want once You let somebody else in you don't have an expectation of privacy because you gave it up vis-a-vis this other person So you don't have it vis-a-vis the government either and the Heckenkamp Court in the Ninth Circuit rejected that and I think went along with What I think is the predominant view and I think is the correct view which is that Privacy is subtle and we may share with people for certain limited purposes But limited sharing doesn't mean that we've given up all of our expectation of privacy with regards to the entire world And the Fourth Amendment has no role to play Mr. Heckenkamp wasn't actually able that was the good part of the Heckenkamp case Mr. Heckenkamp wasn't really able to benefit fully from that aspect of it because he was at a university and This brings me to the other kind of complicated issue that Kurt touched upon which is the issue of private search And public search Thing number one is that the Fourth Amendment applies to regulate the behavior of the government Including state governments and local governments. It doesn't regulate private behavior. Okay, so that's a totally separate category private searches If governed by anything are governed by totally different stuff But sometimes you have employers or schools or those sorts of things that are public like the University of Wisconsin or University of California or The police department or something like that where it is both public and is serving this kind of private Sort of school or employer role and what happens there And in those cases the Fourth Amendment does apply kind of a modified sort of slightly watered-down version of the Fourth Amendment but the Fourth Amendment does apply and The basically functions to say police invest type of investigations wrongdoing Investigations are still governed by the Fourth Amendment, but employer or school type of searches which are for the purpose of that Service those are not governed by the Fourth Amendment And in Hecken in the Heckenkamp case what the court said was His the sir the fact that the search was conducted without a warrant of his machine as it was connected to the school network Is excused because the university was doing it because they were concerned about the security of their system They weren't doing it just to investigate him to see who had committed this crime Of course who was compromising the security of the system was the same question as who was committing this crime But the court found under the testimony that was offered that the school's motive was this Safeguarding one as opposed to a investigatory one and allowed the search to stand This was also an issue in a Supreme Court case that EFF was involved in This last Supreme Court term which is City of Ontario versus Kwan where Mr. Kwan was a police officer using his police Department issued text messaging pager to exchange dirty text messages with his wife and his lover and Another guy. I don't know what that was about But the one of the issues there one of the big issues there was the question of you know He said he was the police department is both the police department but it's also his employer and What rules applied there was it sort of the pure fourth amendment type of rules? Or was it as they court found in Kwan one of these kind of watered down things because it was they were serving this other Role not purely investigatory It was about the role it was about the police department as employer as opposed to the police department being investigators So you can see I think with these examples of machines being connected to networks acceptable use policies shared accounts and just the vast amount of intermingled evidence how complicated the How complicated it is to decide how to apply the old rules About searches and seizures to computers and one of the ways we've tried to address this or courts have tried to address this is through trying to set up some kind of Things that police can follow so that they understand what's going on in the ninth circuit has really taken a giant leap in this in The case of United States versus comprehensive drug testing probably one of the most important computer search cases of the past five years and in this case the ninth circuit set out some rules for officers to follow that it hopes a Dress is this problem of you know once you're in the computer It's just a free-for-all you can get access to all the information that's there So I'm going to just say what the rules of comprehensive drug testing are and then let Marsha talk about Border search one is that the court recommends that investigators waive the plain view doctrine Which is an amazing recommendation in other words, you know if you're looking for something and you see something else Normally the cops can seize it if it seems to be evidence of crime, but under comprehensive drug testing They want police officers to waive that number two is that? Officer should have an alternative search team either within the police department or independent third-party forensic Investigators who will filter through the information to get what it is that they have probable cause to search for and Segregate and redact out everything else to retain the privacy of that information for those of you are thinking about third-party forensic Businesses it's a growth industry in the ninth circuit right now Three is they should say what the actual risks of destruction are not this battery might die or digital evidence is so delicate Who knows what could possibly happen to it if we don't search it right now without a warrant? But disclose the actual risks of any kind of destruction or interference with the evidence number four They should have a search protocol that only goes to look for the stuff that they have probable cause for and not for other stuff so for example in a case that Marsha and Matt and I have where they were looking for evidence of who sent email threats They shouldn't also be searching through everybody's computers for arson or for Vandalism or other types of things on a fishing expedition and finally the idea that when After the search is done when you have the stuff that you had probable cause for and you were allowed to search for and you've Got all the other stuff They've got a destroyer return the other stuff and can't hold on to it in order to like fish through it later on if they Get bored or that sort of thing So Marsha's going to talk about the complexities of border search and then Kevin's going to talk about what happens when you don't have your data Stored on your device or phone or laptop, but it's in the cloud And maybe if we have time then I'll come back and talk about Raeberg and the Fourth Amendment suffer you can talk about it then. Okay. Thanks Thanks Jennifer So I'm going to talk about an exception to the Fourth Amendment that applies at the borders. How many of you? How many of you take your laptops on international trips? And how many of you have information on those laptops that you consider confidential? Yep so I hate to tell you this but All searches that occur at the border are considered reasonable so Kurt mentioned that the Fourth Amendment protects against unreasonable searches and seizures and The rationale for this exception at the border is that the government has an interest in keeping bad stuff you know illegal stuff out of the country and so what that means is that for Routine searches, they need no suspicion whatsoever to to search things that you bring into the country There is a very very narrow category of Search that's considered non routine, but it's very narrow I mean, it's like your elementary canal. That's what it is They need reasonable suspicion to do a search like that In the past few years there have been several cases that have come up where the government has searched laptops and other digital devices That either are coming across the border from Canada or Mexico into the United States or At an airport which is considered sort of the functional equivalent to the border when somebody is flying in from an international location and the courts have uniformly found that Despite the tremendous amount of information on a laptop a search of a laptop is routine and Therefore requires no suspicion whatsoever So that is something that I think a lot of people probably don't know and That people should take into account when they're traveling with their laptops internationally There are a couple of interesting developments that are going on despite this really bad rule There's a case that's being litigated right now in the Ninth Circuit called United States versus Cotterman The oral argument will be in September in San Francisco if anybody is interested This is a case in which a man was driving with his wife from Mexico into the United States and The the border guards ended up seizing his computer and his wife's computer. They didn't have The the tools to do the sort of forensic analysis that they wanted to so they took those computers 170 miles away to do the to do the search and they kept them for four days and The the district court in that case found that Actually the the government needed reasonable suspicion in that case to do that because they actually Took the computers so far away for so long that the government lost its its border search status so This is a really interesting situation I think it creates some some issues for the government because it basically means that if they you know Want to be able to to search a computer on on no suspicion, you know They they need to do it pretty much on-site and very quickly Which may logistically be difficult and you know may not really be feasible in all situations, but So this is a chink in the armor at least and you know, we'll see what happens in the Ninth Circuit There's been a couple other District court decisions that have followed Cotterman at this point. So it's going to be interesting to see if that holds up And another thing I wanted to mention that has come up in the border search context That is not necessarily Tied to the border. I think it could also come up in other contexts But it just happens to have come up in the border search context is the question of compelled disclosure of passwords There was a case a couple years ago involving a man named a Sebastian Boucher who is coming from Canada into the country and His computer happened to be on Agents were able to to go through it and see some of the content There was some that they found to be questionable. They suspected it might be child pornography they shut down the computer and Later when they tried to boot it up again, they realized that the the the drive that The questionable content was on was encrypted and they tried to force him to give them the password so that they could access that information and The court in that case found that to force mr. Boucher to give over his password Would violate his Fifth Amendment right against self-incrimination Now the Fifth Amendment right against self-incrimination Says that you cannot be forced to give testimonial evidence that would tend to incriminate you And so they basically said that forcing mr. Boucher to give his password would reveal the contents of his of his mind his knowledge as to that password and that would tend to incriminate him and they weren't allowed to do that so That is also a very interesting precedent that one stands. It was not appealed by the government There's been another case since then in Michigan that that followed a similar reasoning So, you know, that's another kind of interesting and developing area of a border search related law as well And so that's what I have for you and now Kevin's gonna talk about the statutory protections for email Hey, everyone. Thanks for coming Actually, I'll start with a brief discussion of the Fourth Amendment When it comes to the data you store in the cloud Or with other third-party providers 40 years ago the Supreme Court found that you had a reasonable expectation of privacy in your phone calls Despite the fact that the phone company had access to those calls could listen in on them that it was carried over this third party company's equipment You had a reasonable expectation of privacy and the government had to get a warrant Actually, something we colloquially call a super warrant a wiretap order if they wanted to listen in on your calls We at EFF think that that logic clearly applies to your electronic communications as well your emails your IM's etc. The courts unfortunately have not quite caught up with our enlightened view on the subject instead The courts have tried to avoid answering the question of what fourth amendment protection you have in your electronic communications This is most recently Demonstrated in the quan case that Jennifer mentioned where the Supreme Court said well, you know This technology is so new and we're not quite sure of society's expectations regarding it So we're just not going to decide whether you have a reasonable expectation of privacy in your pager text messages How old is that technology? I it's older than I am practically, but Following quans lead in a case that we were involved in in Georgia in the Third Circuit Rayburg v. Hodges. This was a case of a whistleblower About corruption in the local government and local authorities used a sham subpoena and invalid subpoena to get the content of his email and The appeals court following quan said well, you know this email technology It's so new And we really don't want to make an unnecessary judgment on whether people have an expectation of privacy in their email so With courts like this It becomes all the more important. What are your statutory protections? What protections has Congress given to you above and beyond the fourth amendment that protect your privacy? And Congress has passed a statute that that does purport to Protect your communications privacy. It's called the ECPA the electronic communications Privacy Act of 1986 eons ago in internet time and that's that's gonna be a problem as I'll explain And in particular the stored communications act portion of the ECPA which protects your stored communications and records about your communications activity and It it's not really that great. We appreciate the effort from Congress, but To very briefly summarize what it does It creates rules procedures that the government has to follow if it wants to get your communications or records about your communications From two different types of entities remote computing services and electronic communication services And those are pretty much what they sound like a remote computing service is a service that you store your data with or that you send your data to to be processed for you so Online backup services virtual storage lockers that would be an RCS While your email provider your ISP your IM provider your phone company would all be ECS's and what level of protection you get is Turns on which type of entity. We're talking about We'll start with RCS, which is in a really bad way To the extent you're storing your data in the cloud Be it a you know storage locker online backup whatever which I expect people with laptops are more likely to do you want to be able to access your data anywhere It's dead easy for the government to get that data rather than having to get a search warrant under this statute they can get only a subpoena Which essentially a prosecutor on their own can write out a subpoena and serve it or they have to get a much lesser Or they can get a court order that's much easier to get than a probable cause warrant instead They just have to demonstrate that the information they're seeking is relevant to their criminal investigation So basically this isn't what they do when they have probable cause. This is how they get probable cause This is before they have probable cause to know there's a crime being committed It's while they're trills trying to establish that so it's very easy For the government to get the data that you store with a third-party remote computing service And you don't get notified immediately You're supposed to get notified, but there are very liberal rules for the government to delay that notice Based solely on a certification by a supervisory official that it would have an adverse effect on their investigation And so they can get a 90-day delay of notice to you when they seize your files Which they can renew for as long as they think it would hurt their investigation So very easy for the government to get that data When it comes to your stored communications that are stored by your communications provider The rules are much more protective at least on their face The government actually does have to get a warrant for the first 180 days You're probably wondering why does the law only protect my say my stored emails that I store with Gmail for only six months Well remember this law was written in 1986 This was back when we would you know dial into our BBS and pull down our email and delete it off the server No one had enough server, you know storage was so expensive no one was going to store your emails for a very long time and If they even happen to store it for longer than six months if you hadn't accessed it for six months You'd presumably abandoned it and any privacy interest you have So this is just one way in which this law is really archaic because there's this arbitrary cutoff at six months where you lose strong privacy protections and Move to the RCS rules such that the government get it with just a subpoena or an order based on on relevance Excuse me So that sounds okay, you know at least they have to get a warrant for you know, you're more recent stuff So please do delete your stuff within 180 days if you can But actually it's worse than that because the government reads the statute in a really weird way The statute protects communications that are in electronic storage a defined term in the statute and based on the particulars of that definition the government doesn't think that definition applies to emails after you've opened them and Also doesn't apply to emails in your scent folder or your draft emails So basically under the government's view under the primary federal Electronic privacy statute that's supposed to protect you and encourage you to use these wonderful new services The only thing that requires a warrant are the few emails in your inbox right now that you haven't looked at yet This is a problem Suffice to say and there is a great Opinion in the Ninth Circuit, which includes this fine state here Disagreeing with the government and saying that even open mails are in electronic storage But DOJ still disagrees its regular practice outside of the Ninth Circuit Is to only use subpoenas or these lesser court orders to get all of your opened email and sent email and draft mail and because of the Patriot Act which allows for a Nation-wide service of this kind of process They'll often use these orders or subpoenas to go after stuff stored in the Ninth Circuit Using a court outside of the Ninth Circuit something we've seen a number of times Most recently in a case in Colorado that we participated in as friends of the court where the government was trying to get this Information get some open emails from Yahoo and Yahoo was able to get Their brief and the government's brief unsealed so that we could jump in and assist And we got a great coalition of civil liberties groups and companies like Google to say This reading the law is boneheaded and this Ninth Circuit law contradicts it and you shouldn't do this and the government was Well, okay, actually we don't need that anymore. We're just gonna withdraw our application So we couldn't get to the point where we actually got a decision saying no You can't do this and this is actually happened to us a number of times where federal magistrates Who've been asked by the government to authorize these non warrant seizures of email? We would get invited by those judges to brief them and give them our perspective on this boneheaded reading of the law and Twice now three times counting this Yahoo case as soon as we got involved the government back down That's really flattering But it it doesn't move the ball at all. It actually keeps us from establishing the law in a good way So It's because of this ridiculous open-done-open distinction It's because of this ridiculous and arbitrary 180 day cut-off And for a variety of other we're this area of law and the stored communications act in particular needs to get updated by Congress for the 21st century because it just isn't working anymore And so we've been working very hard on a project called the digital due process coalition in cooperation with the Center for Democracy and Technology and ACLU and a broad swath of companies like Google and Microsoft and AT&T an obvious enemy of ours in other contexts Where we've all gotten together and gone to Congress and say it's time to update the rules and in particular on this issue It should be clear that a warrant is required if the government wants your data Whether it's from an electronic communication service provider or a remote computing service provider Whether you've opened it or not whether it's in electronic storage or not And there have been hearings on this and we hope to have a bill sometime next year because the Problem is just getting worse and the government is clearly not abandoning. It's I'll say it once again bone-headed reading of this area of the law So in the meantime if you can avoid storing stuff with a third party, please do avoid it if You can pop your mail and delete stuff off the server as soon as you grab it so that you don't have open email sitting on a server that the government thinks it can get without a warrant you should do that and Get a get a physical backup drive rather than using online backup if you can Kurt is going to say a little bit of something about one other statutory protection for your data or rather for the data of journalists Move up here for a second. So, oh, yeah, I want to talk about one other statute, which is the Privacy Protection Act This was a law passed in the wake of a 1978 Supreme Court decision and that decision arose out of a situation in which the Stanford Daily a newspaper at Stanford University Was subjected to a newsroom search So they had written some articles and the about an incident that the police were very interested in Investigating and they thought that they might find some useful information by Searching the newsroom went in there and they took all the stuff and this upset a lot of people Because the court found that the First Amendment interests of journalists Nor even or nor nor nor the Fourth Amendment interests of the journalists were sufficient to stop this search and it creates out of the specter that the government could come in and Raid a newsroom not only looking for the the evidence that the journalist might have based on their sources and such But taking the material that was going to be for publication and essentially affect a Restraint on future publication. So go sees all the the materials about to be published and shut down the newspaper so Congress and in sort of a rare bit of Putting extra protections out there past the Privacy Protection Act which makes it unlawful for the government to Go and raid raid a journalist and sees the Documentary material material that is is about to be published or some of the excerpts from that material And the the law is written to protect a person Reasonably believed to have a purpose to disseminate to the public a newspaper book broadcast or other similar form of public communication So this is a law from from a long time ago Where the modes of communication and publication were a little bit more limited than they are today now that the mode of Communication includes a lot of different publications over the internet This allows for a sort of a more expansive view of what would be protected by the Privacy Protection Act There isn't an important exception to this which is when it is the the journalist Themselves who are suspected of committing the crime but the exception to that exception and Stay with me on this Exceptions and exceptions to the exceptions and the exception to the exception is if the crime the journalist is suspected of Committing is the receipt of the information and issue or the the publication of that issue So they're trying to not create a sort of a catch-22 loophole where you can accuse someone of the crime of receiving the information And then get around this law so in circumstances in which there is a a search of a computer which holds documentary materials like notes or Articles that are being prepared for publication Then definitely that is a an additional issue that everyone should look into should that occur And the EFF would be a wonderful organization to contact that if that happens to you So I think that with that that wraps up our Lecturing portion of today's program. I would be happy to take questions that you may have Has the government expanded its definition of what constitutes the border for these purposes? The border search It's not to interrupt you. I just want to try to go the border search Exception is about keeping the border safe as people cross the border, right? So if you live near the border, that's not where the exception applies The exception is when you come in and the question is how close to the border Do they have to get you and how long from the point that you enter? Do they have to Be doing the search in order for that to be the thing that makes the border search exception apply So that's this issue is actually not relevant to the way that the courts define the border search exception Okay, that is a different thing that's court defined having to do with when the Fourth Amendment thing applies that this gentleman right here what about Yeah, what about what about do you actually helping border search agents when or border agents when they're doing Searches of your computers as you come in and what does that mean? So okay the the issue of the Fifth Amendment is aside It's about testimonial stuff And I think your question is do I have to help them and explain to them? I have separate accounts or that sort of thing and no one can make you answer questions except for a judge You have to use your discretion to some extent about whether to answer or help and whether you think it will help you in the Moment, you know, usually we tell people don't consent don't talk There's always time for consenting and talking later after you've had a chance to talk to a lawyer and can you know Make that a reason thing But there may be times where you're like you think that that's different like for example They're going to search your laptop and it's got somebody else's account on it And you want to let them know so that they know they've got a steer clear of that information Because even if they have something having to do with you Maybe they don't have probable cause or any excuse to look at that other stuff and that's just like a judgment call So if you're going to be doing putting yourself in that kind of situation you want advanced advice It's a good thing to talk to lawyers ahead of time But anything you say can be used against you so it has to be you know taken into consideration This gentleman here in the white shirt Kevin's gonna address Warshak so yes Steven Warshak indicted for a variety of flavors of fraud related to the marketing of en-site natural male enhancement This case in the sixth circuit that involved them using these Lesser non probable cause orders under the stored communications act to obtain his email Mr. Warshak believes as we believe that this is actually Unconstitutional and the government should have to get a warrant and we got a great decision from the sixth circuit in Mr. Warshak civil case against the government regarding his email seizures Unfortunately the sixth circuit finding that we were right that the fourth amendment required a warrant and that to the extent The SCA didn't require a warrant. It was unconstitutional But sort of embodying this trend of the courts kind of avoiding these issues the sixth circuit en banc the entire Panel of judges on the sixth circuit when they reviewed it said no We're vacating that decision this issue isn't ripe anymore because they're they're not getting his email anymore The issue has come back around now that mr. Warshak has been convicted in his criminal case and One of the and one of the reasons on appeal why they think that conviction should be overturned is Again the argument that well the emails that they used against him were seized in violation of the fourth amendment So we have as we did in the civil case participated as friends of the court on this criminal appeal and we're awaiting a decision there and so That is one of the avenues where we're hoping there's a possibility We will get a good ruling on the fourth amendment and email protection, but we haven't gotten a decision yet Thank you Unfortunately, we're being informed that we're done and I never go against the goons So nor should you so if there's other questions on this topic I see this gentleman over here or other topics then I encourage you to come to our panel tonight at 6 and Yes Oh, we go to the Q&A room now Okay, we'll go to the question and answer room now and then also you can come to our panel That's at 6 tonight. So thank you all for coming and for your attention. I appreciate it