Slashdot Mirror
US Courts Consider Legality of Laptop Inspection
ceide2000 writes "The government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer's hard drive, the government says, is no different from looking through a suitcase. One federal appeals court has agreed, and a second seems ready to follow suit." This story follows up on a story about laptop confiscation at the borders from a few months ago.
I think the answer is: no, that's not allowed. They are allowed to search in order to satisfy themselves that it is a book/document and not something nefarious (bomb, contraband, etc.)... but beyond that they cannot go rummaging through any data you happen to be carrying on your person.
By analogy, I would expect that physically inspecting a laptop (to make sure it's not hiding anything nefarious) is okay, but I can't think of a legitimate reason to start scanning through the data on it.
A laptop can be used to carry contraband. Pirated software. Nuclear secrets. What makes it different from opening a suitcase?
There's a few things that make it different. First, by opening a suitcase and performing a cursory inspection, an official doesn't read every notebook and letter the traveler is carrying. A customs official that takes a computer for inspection can do all kinds of unreasonable things to it, and there's little that can be done about it. There's also the problem of figuring out what is illegal: Should a traveler prove that every mp3 he is carrying was ripped legally? Should we have to carry the licenses of all commercial software? It'd be crazy.
And finally, there's the fact that anyone smuggling software will just get an internet connection and send it across through the wire.
I don't think you'd need to encrypt anything. Your laptop won't be on when they begin their inspection, right? So add another account that you fully cooperate with them with that has access to nothing, and maybe has some default pictures and stuff for them to browse around with. Configure login script to fix whatever they screw up on that account on each login. Log into *that* one for them to do their probing. They won't have any way of knowing it isn't your main account. Heck, make that a nice self-healing account that friends can use. Bonus!
If you assume somewhat more sophisticated inspectors, you may want to put what can be construed as nefarious software (nmap, tcpdump, nessus, kismet, etc) in a more secure than normal place.
Now, if you expect the thing to be confiscated, that is a different story.
No, it's not "opening a sealed envelope". Envelopes can contain toxic chemicals, weapons, etc. Computers only hold information. The difference is that they're now policing thought.
Can they ask to see the contents of a company laptop? If that information is proprietary you have every right to deny them access as an employee or face legal liability for showing others that information. Arguably, they have no right to a laptop that isn't yours or viewing information that you do not have the right to show them; they would need to get a release from the company in order to view that data.
This is my sig. There are many like it but this one is mine.
Better yet, if you need to keep them from snooping around on it, just unhook the mobo from the PSU.
Some days I just get bored and Troll post all the memes I can think of...
It's pretty clear cut fifth amendment (it was a question in that case because the person has already given the pass phrase to the customs agent) , if you don't know that you can claim that then you really shouldn't be traveling to the US (especially with something you know you're not allowed to have).
It's foolish not to find out about the laws and customs before you travel to foreign countries. Of course if you are a tourist I think the agent can just refuse you entry anyway - which might be better if you really do have something to hide. Though a refused entry record is going to make international travel a pain for the rest of your life.
If you're a citizen, then the ka-ching sounds will be making it hard to concentrate as you try to get everything on record for the sue everyone vaguely involved action that's coming...
Of course there's always the chance you get shipped off to the middle east for some torture since you look like you might have once been in the same building as someone who went to school with someone who is a suspected terrorist. It's not something I'd try, but then again I wouldn't be trying to cross the border with child pornography on my laptop...
I sure get tired of the fools who think international borders should be treated as carelessly as the border between Nevada and California. I can only think they've lived so long in a world that seems totally harmless, like trust-fund babies who've never left the crime-free gated community, that they now naively think there's just no more evil left in the world. So they can't see all this fuss about actually, you know, making sure that folks coming into the country are not up to seriously bad things.
They remind me a bit of the similar folks who fuss about the dangers of vaccines or chlorine in the water supply, because they've lived in a world with powerful antibiotics so long they no longer really believe that deadly bacteria exist and can kill you dead without some basic precautions at the similar "border" between one's body and the outside world.
The assholes, rummaging through a hard drive means LOOKING into someone's personal life, proprietary information, or the like. Rummaging through a suitcase doesn't involve asking for receipts of when, where, and for how much the clothing or toiletries were purchased, or for or by whom the purchases were made.
This has less to do with protecting the public than it does with further conditioning the public to EXPECT to surrender for ANY reason, even without suspicion or due process or valid warrants.
Why, just WHY should the public trust some low-level functionary or scanner operator to NOT heft away with product ideas?
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
The Carroll Doctrine (aka the "automobile exception", aka Carroll v. US) says that although they can seize a locked container in transit, they can't search it without a warrant. If no warrant is forthcoming, they have to return the locked container unsearched - they can't destroy it or confiscate it. There have been plenty of court cases since (California v. Acevedo, US v. Chadwick, US v. Ross, Chambers v. Maroney, et. al.) that have clearly established the rights of "persons" (as opposed to merely "citizens") under the Fourth Amendment. And even though the USSC has said that people crossing into the US have a diminished expectation of privacy and border guards have expanded powers of search and seizure because of the exigent nature of the circumstances surrounding a border crossing (in particular, no probable cause is needed before a search), there still is no support as far as I've been able to find for the warrantless search of a locked container absent any sort of either probable cause or even reasonable suspicion. It follows that the government can search my hard drive without a warrant at a border crossing, but what happens when they happen across that TOPSECRET encrypted folder?
It's going to interesting the first time one of these cases reaches the USSC. What happens if I encrypt my data with AES 256 (certified for TOP SECRET data), I get stopped at the border, and I refuse to give up my encryption key? Since I'm a citizen, they can't deny me entry, they can't hold me until I give up my key, and they can't decrypt the data. An interesting situation. As a former police officer, I know how I'd handle the situation without breaking the law and without holding the subject in jail, but I doubt that most DHS folks would have that much creative imagination.
-- Ed Carp, N7EKG erc@pobox.com PGP KeyID: 0x0BD32C9B What I'm up to: http://intuitives.mine.nu
The ninth, of course, is the most important of the amendments when it comes to privacy. The Fourteenth is probably the next most important, with its protection of liberty and due process.
The Fourth in itself doesn't really say anything about privacy. It doesn't even keep the government from prying into our private affairs. It does two things: it prevents the government from "unreasonable" (that is to say more or less irrational) seizures and searches. It doesn't even require a warrant for any search or seizure, but it sets standards for warrants where they are customary. If you are a strict constructionist, it doesn't do anything more.
It is centuries of judicial interpretation and faulty pedagogy that have invested the fourth amendment with privacy protecting powers. Conservative jurists have fought this every step of the way. It was innovators like Louis Brandeis who saw a "right to be left alone" implied by the fourth and fifth amendments, and liberals like William Douglas (Griswold v. Connecticut) and Harry Blackmun (Roe v. Wade) who found a right to privacy in the "penumbra" of the fourth, fifth and fourteenth amendment. It certainly isn't there in plain words, but what is there (they would argue) doesn't make sense unless is protecting such a right.
Strict construction is an argument against this kind of reasoning. However if you believe in this philosophy, you'd better be pretty accurate about what the Constitution does say, because it lacks a great deal of the mechanics you'd need to protect individual liberties, although the spirit is there.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Although I agree with your philosophy, I don't think your argument holds water.
The British Crown would not have stripped colonials of citizenship, for the simple reason they didn't have citizenship. Nor did any resident of Britain from the lowliest Cockney tinker to the haughtiest peer of the realm, for the simple reason the Crown didn't have citizens, it had subjects. Of course the Crown was never an absolute monarchy, it was never anything like the crown of France, or Spain. The barons had this thing called the Magna Carta.
There were always a few Whigged out eccentrics who thought ordinary people had, not just a few basic rights, but something called liberty. Many people toyed with such views in their phase of youthful indiscretion, but it was the overseas provincials who really bought into the whole delusion. So much so that when they gained their independence, they set up their entire government the exact way they thought the government in London was operating all along. There were a few republican small r twists. The King was called the President and he was elected every four years. The House of Lords was called the Senate (wealthy provincialism is no barrier to having a fine library of Latin works) and the commons was called the House of Representatives. But pretty much they took the customary powers of each piece of the English government (as they understood them) and put them down in a document that ensured that government would be weak and far away, just like in the good old days before the King started taking an interest in Colonial affairs.
They didn't bother to write everything down, like exactly when warrants are needed, because everybody already knew how that was supposed to work. Which is why the Constitution didn't have a Bill of Rights to begin with. Once it was proposed, it wasn't really a controversial idea; some people had a bee in their bonnet about what seemed perfectly clear to most people, so they did what Americans always do when faced with a complex philosophical problem like the relationship of the people to the government. They put together a quick patch that seemed to cover most of the things people were most concerned about, got it passed, and got on with the business of innovation, territorial expansion, and generally making money.
Consequently, a lot of what they put down is open to interpretation. Interpretation being what it is, this is sometimes a good thing, and sometimes a bad thing. As much as I agree that the people have human rights, and the Bill of Rights reflects this, people can and do make serious arguments that it doesn't apply to people who are aliens. Whether it did or not would probably have been clear to every patriotic American in the first decades of independence.
Which doesn't mean they'd actually agree on anything, other than the meaning was plain one way or another.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.