Last week saw two major Judicial decisions related to privacy come out of the 9th Circuit, perhaps signaling a new offensive against warrantless wiretapping.

First, a Federal Appeals court ruled that customs agents no longer have carte blanche to search electronic devices coming into the country.  The 9th Circuit decision has an impact on border crossings into California and Arizona.  That doesn’t mean that Texas or New Mexico will follow the same rules. The case comes from a California man who was flagged by agents because of prior convictions for child molestation.  Agents found no incriminating evidence on his two laptops or three digital cameras, so they seized them and sent them away to a forensic lab.  Pictures of pornographic pictures of children were allegedly found by the forensic team, but the judge threw the evidence out because the devices were removed from the border area.  The 3 judge appeals panel upheld the ruling.

On Friday,  another Federal judge ruled that National Security Letters are an unconstitutional ban on companies First Amendment rights in the case of a telecommunications company that sought to fight the gag order.  The court refused to conform the order, as the 2nd Circuit did in a prior case.

The battle in the courts over the balance between law enforcement and privacy continues.  The Supreme Court last year rejected the case against warrantless wiretapping, but did so on the grounds that the individuals being tapped couldn’t prove that their communications had been monitored.  If the gag order on NSLs is removed, then it’s possible that a new case could go before the Supreme Court for them do decide whether the Executive Branch has the authority to issue NSLs without judicial review.

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