EFF To Fight Border Agent Laptop Searches

snydeq writes "The EFF and the Association of Corporate Travel Executives have filed an amicus brief with the 9th Circuit Court of Appeals requesting that the full court rehear and reverse a three-judge ruling (PDF) that empowers border agents routinely to search files on laptops and mobile devices. The case in question involves US citizen Michael Arnold, who, returning from the Philippines in July 2005, had his laptop confiscated at LAX by custom officials after they opened files in folders marked 'Kodak Pictures' and 'Kodak Memories' and found photos of two naked women. Later, when Arnold was detained, officials uncovered photo files on Arnold's laptop that they believed to be child pornography. In addition to raising Fourth Amendment issues, the amicus brief (PDF) reiterates the previous District Court ruling on Arnold's case regarding the difference between computers and gas tanks, suitcases, and other closed containers, 'because laptops routinely contain vast amounts of the most personal information about people's lives — not to mention privileged legal communications, reporters' notes from confidential sources, trade secrets, and other privileged information.'"

Comments

Seizure the real problem

[jrumney]

I don't see the search itself as being as much of a problem as his laptop being seized because of two (presumably legal, as the article says women, and the alleged children came later) porn images.

Re:Seizure the real problem

[Yvanhoe]

It is assuming that an information can be of danger to the state. That and the fact that they won't disclose to you what they are searching for. Maybe this guy don't want the police to know that he has two naked pictures on his laptop, maybe (who knows ?) one of this women is one of the agent's daughter. Maybe the other agent is an ultra-catholic who will just use his (PATRIOT-act given) powers to harass this guy because of pictures he finds immoral ?

In a perfect world, search wouldn't be a problem. Privacy rights exist because police agents, custom agents, administrative officials are all fallible humans that are allowed to have weird opinions, small IQ, various beliefs and can usually be bribed.

Re:Seizure the real problem

[Anonymous Coward]

In a perfect world, search wouldn't be a problem. Privacy rights exist because police agents, custom agents, administrative officials are all fallible humans that are allowed to have weird opinions, small IQ, various beliefs and can usually be bribed. I agree with you in principle, but I would argue that any "rights" exist on a much stronger basis than "to protect us."

A right is a fundamental, inherent to the existence of a human being. You have the RIGHT to live, not to protect you from someone taking that right away form you, but because here you are.

Privacy PROTECTIONS exists because any and all people in a position of power have opportunity to abuse their authority for personal gain, thus violating your RIGHT to privacy.

You could as well say the Constitution grants you rights. This isn't true at all. There are no Constitutionally granted rights, only Constitutionally protected ones.

I know this sounds like quibbling over semantics, but I think there's an important fundamental distinction here.

Now I'll climb off my soapbox.

Re:Seizure the real problem

[Falstius]

Privacy is not a right the limited to the technical elite. The proverbial 'grandma' should be able to expect crossing the border to "just work" without having to set up full disk encryption (which if discovered they would detain you for until you unlock it, so you need to know how to hide it and then make a second dummy installation for them to discover and this really all sounds like a bunch of bullshit to go through when you think about it). The solution is to demand our individual rights, not to hide behind technological barriers.

Re:Seizure the real problem

[palegray.net]

No, you won't be done with this problem at all. You're still complicit in the stomping of the privacy rights of U.S. citizens. It will get worse, I assure you.

I'm not saying encryption is a bad practice (hell, my workstation's partititions are *all* encrypted). I'm simply saying that finding a way around the system isn't a suitable replacement for long term efforts to fight it.

Re:Seizure the real problem

[Yvanhoe]

What is their job again ? To check that goods entering are legit and that people entering are legit. Information that you have to CARRY are not trade goods but private data that you can't easily prevent carrying. They may revel some past criminal activity from their owner but determining this is the role of a court, not a custom authority. A custom only has to stop known criminals.

And if you want, I can elaborate on why separating judgment and enforcement of a judgment are activities that must be carried by different organizations.

Re:Seizure the real problem

[palegray.net]

Hiding and encrypting your data is a good idea in general, even when not crossing the border. Here's the problem, though... how long until the mere presence of any encryption software whatsoever is taken as open permission to confiscate your gear until you feel like giving them the passphases they want? Who says you'll ever get it back at all, or won't wind up on a watch list? Aggresive legal measures need to be taken now to stop this crap.

To me, the most idiotic part is the fact that anyone sufficiently sophisticated to harbor a lot of illegal information, or information deemed dangerous to national security, would most likely be smart enough to send it over the net to its intended destination via an encrypted link. Oh, wait... does that mean the government will start considering data streams entering our country as liable to unquestioned search? Think about it.

Re:Seizure the real problem

[Patrick Bowman]

Two important issues: 1. There is nothing illegal about pornography in general. It doesn't matter whether he had two or two million pix of naked women. Their discovery is as irrelevant as wedding photos. 2. Nowadays there are so many ways to carry files around - SD chips, CDs/DVDs, on your iPod, on an encrypted HD partition, not to mention just downloading them later - that this sort of search is largely pointless. Any serious importer of child pornography wouldn't even be inconvenienced by them. This is not to downplay the legitimacy of the child porn issue - but measures like this waste time and effort that could have been used elsewhere. In Bruce Schneier's phrase, security theater.

Bad Case

[Nerdfest]

While I agree with the privacy infringements, I really wish it wasn't someone suspected on child porn complaining about it. It certainly won't garner much support from the general public, informed or not.

Re:Bad Case

[ArsenneLupin]

What it really takes to get this child porn nonsense to stop is that finally somebody important (CEO of large company, politician of major party) will be framed with some.

Until then, you can't even discuss the issue without being suspected of being a perv.

Re:Bad Case

[Doctor_Jest]

Well true, but two naked photos of grown women (I assume that's what the initial search uncovered) do not constitute "probable cause" to search for kiddie porn.

It's a fluke, from what I've understood of this case so far, that they uncovered child porn in the first place. The problem I have is that the "search" of the laptop initially produced something unrelated to a search for kiddie porn. Nudity != perverse pictures of children.

Even though this particular case shows a "positive" from the investigation, we need people to realize that in our system of justice and freedom the ends do not justify the means. We have protections and guaranteed rights (not granted ones) because we are protecting people from the system's possible abuses. We grant them power but never in exchange for our rights and freedoms. That is a common misconception of the "great unwashed" and it's up to us (and the EFF is helping) to educate people.

We need to focus away from the actual child porn found and focus on how they got to that... If we don't, the end result will become the justification, and like The Patriot Act, we'll be stuck with something that endangers us all.

Re:Bad Case

[elp]

Thats why child porn is so great for false accusations. You accuse someone of it and its almost impossible to prove your innocence. If you are feeling brave or you live in a slightly more chilled country search P2P for the R Kelly child porn video. She doesn't look or act even slightly underage but to anyone who hasn't seen it R Kelly is instantly an evil child molester and pornographer.

Re:Bad Case

[Speare]

What it really takes to get this child porn nonsense to stop is that finally somebody important (CEO of large company, politician of major party) will be framed with some.

If kiddo pix were found on one major political figure's desktop, that figure would be sent to jail and everyone would just shrug. Think of all the recent "family values" politicos who are simply erased with a shrug or lambasted for hypocrisy. Some of them may be innocent for all we know, but we're so jaded that hypocrisy is easier to explain than a frame-up.

Your plan would only work if the ones who framed a politician then came clean immediately afterward with PROOF of HOW they framed them, and more convincingly, framing two opposing figures at roughly the same time with different methods. At that point, when proving it was false to begin with, hit hard on the "if you've got nothing to hide" nonsense. Of course, if you plan to do such a campaign, you had better be able to remain firmly unfindable. Or you will be found hanging in your garden shed with a very convincing suicide note.

Re:Bad Case

[masdog]

What it will take to get this stopped is an innocent father or mother who is detained because they have a picture of their baby's first bath on the computer.

What's absurd these days is that parents are being investigated as child pornographers for baby bath pictures.

Re:Bad Case

[DrLang21]

Considering that two underage teens were prosecuted for statutory rape for having sex with eachother, I don't think that is enough to get it to stop.

It was never a problem before.

[arthurpaliden]

In the past, the time before computers, you never traveled with all your personel papers, love letters, note books, and your corporate trade secrets in your luguage because the border gaurds would be searching your stuff and possible reading it. So why is storing it on a computer so different. If you do not want it looked at don't put it there.

Re:I don't understand the argument

[morgan_greywolf]

I would rather they couldn't search laptops, but I don't understand the argument put forward here. For example, if I had "privileged legal communications" in my suitcase they could still open it, right?

The reason they can search your suitcase is that it might have a bomb in it. Of course, I think that violates the 4th Amendment too (and I think many would agree), but I understand their point.

OTOH, a file on the HDD can't contain a real bomb, only a virtual bomb. Virtual bombs don't blow up airplanes.

Waiting for another Geek Squad incident...

[FataL187]

I wonder how long it will be before we hear about how the customs agents have a shared collection of porn from all the hard drives they search.

Re:Strong encryption for personal data

[jeiler]

Strong encryption is an answer, not the answer. In this particular case, there should have been no need for any encryption: computer data should not be searchable without a warrant or probable cause. And no, "I need to see if you're carrying pictures of naked kids" is not probable cause without substantive evidence of wrongdoing.

That Eeee pc looks better and better

[kurt555gs]

The time is coming that using a 'throw away' laptop will be needed for all foreign trips. Everyone will need a server in some 'safe' country to upload everything to, documents and pictures will be needed to be uploaded to Google Docs and Picasa respectively. Any pictures, or letters that were on the laptop will need to be deep erased.

then , just add the cost of having the mini laptop seized to every trip.

Seems simple to me.

Re:Good luck with that one! LOL!

[morgan_greywolf]

Dude, this was AN AMERICAN CITIZEN. They treat us like Bin Laden's favorite, too.

Right. It's not about paranoia regarding 9/11 or anything else. It's about control. Scare everyone to death, make everyone walk around with papers, take away everyone's rights and tell them it has it's for their own protection against the big, bad ugly terrorists.

Anyone know the last time this tactic was used? Oh yeah, Nazi Germany.

(first Godwin!)

Re:Boot to command line

[robot_love]

Let's say you do that.

Which of the following two scenarios is more likely:

1. Government official says, "this guy is obviously a smart ass. I'd better just give him back his things and let him go."

2. Government offiical says, "this guy is a smart ass. I'd better confiscate his computer permanently."

I mean, I realize it's funny to say they won't know how to deal with a command prompt, but if you think that their ignorance will lead to them leaving you to pass unmolested, you're being hopelessly naive. You might as well suggest that if you simply put a lock on your briefcase and claim you don't have the keys they're going to wave you right through.

No. No they're not going to do that. You won't like what they're going to do.

Re:Paranoia

[Ihlosi]

What the hell has that to do with the security of the flight?

Nothing. And that's perfectly ok - customs doesn't care about the security of flights, because they search your stuff after the flight is over. They're looking for things that are illegal to bring into the country (narcotics, weapons, large amounts of cash without proper paperwork, certain kinds of foodstuffs, etc).

Re:Except....

[element-o.p.]

Actually, privacy at the border is limited to diplomats. Everybody else doesn't have any. Huh. I don't remember reading that in the Constitution. Guess I just missed it, then.

 

Don't cross the border with things you don't want customs agents to find. That goes for...trade secrets...on a laptop. So if you are a businessperson, traveling for business purposes, you shouldn't be able to take information across the border that will clench the deal? Or maybe, once you arrive at your destination, you should hook up to your hotel's ultra-secure public internet connection and download the gigs of data at the cheapest fricking broadband speed the hotel could buy from the local ISP -- which, incidentally, is shared among all 200 guests in the hotel. And God forbid that the hotel's internet connection should be down when you arrive. I'm sure your business rival would be more than happy to give you a second chance to make your sales pitch to the prospective client before they make their sales pitch. </sarc>

Nack. The Bill of Rights gives us freedom from search and seizure without due process of law. If agents of the government have no reason to suspect I have committed a crime -- and by definition, crossing the border in compliance with the laws of the countries involved cannot possibly be interpreted as "committing a crime" -- then by a strict interpretation of the Bill of Rights, they have no probable cause to search my laptop at the border. All of this bunk about how the Constitution doesn't apply at the border is just that -- bunk.