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Courts Step in to Protect Constitutional Rights at the Border

Twice this week courts have pushed back against suspicionless, warrantless searches of digital devices at the border, in Alassad v. Neilsen in the First Circuit and United States v. Kolsuz in the Fourth Circuit. In both cases plaintiffs argued that warrantless searches of their digital devices at the border violated their Fourth Amendment rights. Alassad survived a motion to dismiss and the the federal appellate court in Kolsuz determined that under the Fourth Amendment, U.S. border authorities cannot search travelers’ cell phones and other electronic devices without individualized suspicion of wrongdoing.

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CDT Urges Court to Uphold Fourth Amendment Protections for Email Content

Recently, CDT joined the Electronic Frontier Foundation, National Association of Criminal Defense Lawyers, and the Brennan Center for Justice in a brief to argue that a user’s Fourth Amendment rights in email content do not expire when an email service provider terminates a user’s account pursuant to its terms of service. The government must still obtain a warrant prior to searching that user’s email account. The case is United States v. Ackerman, in which a district court determined – based on those facts – that a warrant was unnecessary to access email content because termination of the account vitiated the account holder’s reasonable expectation of privacy in his email. The case was appealed and we filed an amicus brief opposing this holding.

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Initial Observations on the European Commission’s E-Evidence Proposals

On April 17, the European Commission published its long-awaited draft legislation on E-Evidence to facilitate cross-border demands for internet users’ communications content and metadata. EU Member States and the European Parliament will now begin their review of the proposed legislation. In this post, we more fully describe the Regulation and Directive.

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Ten Human Rights Criteria for Cross Border Demands

The European Commission is slated to announce an initiative to facilitate cross-border demands for internet users’ communications content. CDT has prepared a list of human rights protections that should be built into any mechanism designed to facilitate cross-border law enforcement demands, and after the E-Evidence proposal is unveiled, we intend to grade it against this list.

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7

Inspector General: FBI Chomping at the Bit for Backdoors to Encryption

For years, the Federal Bureau of Investigation has been lobbying for backdoor access to the communications of every American. The Bureau has long argued it is “going dark” and can’t access communications protected by encryption. This concern was the basis of the famous Apple v. FBI case, where the FBI attempted to force Apple to break the encryption protecting the iPhone of San Bernardino, CA terrorist Syed Rizwan Farook. Now, a damning report released by the Department of Justice Inspector General casts significant doubt on that argument and the FBI’s honesty in making it.

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CDT Urges Council of Europe to Ensure High Transparency Standards for Cybercrime Negotiations

Today, the Center for Democracy & Technology, along with 93 other civil society organizations, sent a letter to the Secretary General of the Council of Europe, Thorbjørn Jagland, requesting transparency and meaningful civil society participation in the Council of Europe’s negotiations of the draft Second Additional Protocol to the Convention on Cybercrime.

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As Device Searches at Border Grow, Courts Must Step in to Safeguard Constitutional Protections

On February 2, CDT filed an amicus brief in Alasaad v. Nielsen arguing that warrantless, suspicionless border searches of electronic devices such as laptops and cell phones violate the First and Fourth Amendments to the Constitution. Digital—we argue—is different, and the need to address these border searches is pressing because digital content is becoming far more prevalent.

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