ACLU Sues For Records On Border Laptop Searches

TechPolitik writes "The ACLU has sued the US Customs and Border Protection agency under the Freedom of Information Act, aiming to obtain records on the agency's policy of searching laptops at the border. Under the policy, the CBP can search through financial records, photos, and Web site histories, and retain that information for unspecified periods of time. The ACLU is arguing that the information is necessary to understand whether the CBP may be violating the Fourth Amendment, which protects against unreasonable and unwarranted searches. The agency has so far not responded to requests for comment."

Comments

It's a search without a warrant.

[jcr]

Yes, it's a fourth amendment violation.

-jcr

Re:It's a search without a warrant.

[magarity]

Congrats - you're the first (of many) posts by people who have not read the entire Constitution. UNREASONABLE searches may not be conducted without a warrant, not ALL searches. It's up to the courts to determine after the fact whether someone's rights were violated with an unreasonable warrantless search, not slashdot armchair lawyers. Write to your congresscritters to let them know you think it is unreasonable so they can put pressure on the executive branch to not do the search in the first place.

Re:It's a search without a warrant.

[CrimsonAvenger]

The Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There is one phrase there that might of interest - "unreasonable searches and seizures". And there hangs the ACLU's case. Are these searches "unreasonable"?

In my opinion, they probably are.

But a good lawyer can make a lot of mileage out of one key word, and "unreasonable" will probably be the word more argued over in this lawsuit.

Re:It's a search without a warrant.

[jcr]

UNREASONABLE searches may not be conducted without a warrant,

They're not showing any probable cause, either. Routine searches with no grounds for suspicion are unreasonable, QED.

-jcr

Re:It's a search without a warrant.

[digitalunity]

ACLU's kind of taking a weird angle at it, but I fully support their cause.

The retention period of the data is irrelevant, in my opinion. The fact that they deem fit to search laptops or other electronic devices at all without probable cause, let alone a warrant, and considering the highly private nature of most peoples electronic devices, seems obviously contrary to the intentions of the 4th amendment.

Physical searches to board airplanes, regardless of destination seem very reasonable given the public endangerment risk from terrorism like sabotage, bombs, hijacking, etc. Beyond addressing physical security risks, other types of searches should not be conducted without a warrant. If they deem someone a risk, they can detain them and obtain a warrant. If it's not worth the effort to obtain a warrant, then the search isn't justified.

Simple as that.

Re:It's a search without a warrant.

[belmolis]

The OP may be well aware of the fact that only "unreasonable" warrantless searches are forbidden by the 4th amendment. He neither states nor implies that all warrantless searches are illegal. It's quite possible that he has reached his conclusion that these searches are illegal because he believes them to be unreasonable. I think you're the one making assumptions.

Re:It's a search without a warrant.

[jcr]

have not read the entire Constitution

As it happens, I've not only read it, I re-read it periodically, and i'm also familiar with the debates that surrounded its ratification. This kind of routine violation of privacy was among the reasons that we overthrew our king, and was a major issue that impeded ratification of the constitution before the bill of rights was drafted.

-jcr

Re:It's a search without a warrant.

[Archangel Michael]

People get hung up on "unreasonable" of the phrase quoted above ...

The problem is, we forget the PURPOSE which is defined by

The right of the people to be secure in their persons, houses, papers, and effects

How secure are the rights of the people if simply crossing a border causes a violation of the 4th amendment's purpose?

Sorry, but as the Federal Government of the US continues to erode all the rights enumerated in the Bill of Rights, all in the name of "security" (border searches), "welfare" (Universal HealthCare), "protection" (Gun Control), and neither of the two big parties really fighting for these rights, I'm left wondering what's next?

Oh right, totalitarianism under the rule of the Chinese (who own the US). Guess what folks, the (R) and (D) are killing us slowly, and most Americans don't care because they see one side or the other as "good" when in reality they are both evil.

Re:It's a search without a warrant.

[belmolis]

Sorry but his subject header together with the single sentence of the post still do not claim that all warrantless searches are illegal.

What he writes in his journal doesn't really bear on his post. The point is not figuring out what his reasoning process may have been, it's whether what he states in his post is ignorant or illogical. And its not unreasonable to treat warrantless searches as by default illegal since that is a pretty good approximation to the Supreme Court's position. Within the US, there has to be either no expectation of privacy or exigent circumstances for a warrantless search to be permissible. There is somewhat more leeway at the border but when you're getting into searches of material for which there is a significant expectation of privacy and on the other hand only a very limited relevance to the lawful purposes of border inspection, the bias against warrantless searches is appropriate.

Re:It's a search without a warrant.

[0123456]

got some news from you the socialist EU is 1000x worse

That's odd: I work in a company where employees can be sent all over the world with laptops, and the only country where we've received specific instructions on the carriage of sensitive information while crossing the border is America.

It's possible that you're correct and the EUSSR is actually 1000x worse, but from foreign companies' standpoints travel to America is becoming a serious liability; your policies are going to harm your economy far more than EVIL LAPTOP TERRORISTS ever will.

Re:It's a search without a warrant.

[Jah-Wren Ryel]

So, within that confluence of factors, the searches were probably quite legally acceptable.

Indeed, the term "reasonable," as it has been permuted by the lawyers through the centuries, no longer bears much resemblance to how a reasonable man would use it.

Re:It's a search without a warrant.

[Shakrai]

But... aren't the laptops already across the border when they are searched? The border is a very very thin line

For better or worse the legal system assumes that you haven't actually crossed the border until you clear customs/immigration. Otherwise there wouldn't be much point to having those functions at international airports wholly contained within the United States.

Re:It's a search without a warrant.

[Moryath]

But... aren't the laptops already across the border when they are searched?

Perhaps, but the US government has the authority (and exercises it) to establish "processing zones" for the examination of people and goods being transported/imported to the US before releasing them to move freely within said borders.

Otherwise, according to your rather tortured and fuzzy "logic", we'd have to locate airports at the precise border of the US and disallow any international flights except for those which land there. But since that makes little sense on the face of pure logistics, we instead establish the security system such that the plane touches down, and then passengers/cargo are inspected before being released from the confines of the airport itself.

This goes the same for the inspection of ships at a port as well, for example. The "border" of the US may have been crossed at the line of the territorial waters, but the ship and cargo may be inspected at any time by the authority of the US as delegated to the port authority or other law enforcement agencies.

and why are Mexican "illegals" not permitted

I see you are trying to troll and get a rise out of someone here, as well as exposing your rather pointless agenda. Please grow up.

Re:It's a search without a warrant.

[dbet]

The fun part is - that as a non-US citizen, I look at something like this and think "What the hell is the US Government wanting to know what people have on their computer as they visit the US?"

They don't want to know what's on your laptop - not really. There's 3 factors here. First, they enjoy intimidating people. It makes them feel important. Not because they're assholes, but because they're human. Part of the reason for the bill of rights is to protect us from ourselves. We are all capable of terrible things.

Second, on the off chance they get lucky and find some questionable porn, raises all around.

Third, they probably honestly believe they're protecting the border by making sure you didn't store your terrorist plans in a folder called "terrorist plans" right on your desktop.

Re:It's a search without a warrant.

[Omestes]

While you may not of gotten a warning while traveling within the EU, I'm very sure they also look through your computer which they have no real right to do at all. Unless the FBI or Interpol has you on a known terror list, or pervert list there is no reason they (the EU, or my government the USA) has the right to know my private life. I fully agree with you, our policies are going to be be our undoing, it is sad really. I miss the Clinton era...

I was going to give a running tally of the errors, misspellings, and typos... But I gave up. Here is a free tip, in a fully text based medium, people judge you by your ability to type out a well formed thought/sentence. If you're too lazy to write it well, then your probably too lazy to bother with complex thoughts, or justified opinions.

Also, Clinton was also a wanker, and didn't do much for privacy rights, or rights in general.

Re:It's a search without a warrant.

[Shakrai]

In any case, the claim is that they are looking for evidence that the owner of the laptop is a terrorist.

Ah yes, terrorism. The new boogieman that replaced drunk driving and child molesters. Wouldn't any halfway smart terrorist just buy a laptop here in the states and download whatever he needs through an encrypted connection to the terrorist data center back home in Dirkadirkastan?

Re:It's a search without a warrant.

[jcr]

Can you provide any citations that say Customs is not allowed to search [anything] at the border?

It's not for me or anyone else to prove that a given power doesn't exist. it's up to the officers who wish to exercise that power to prove their legitimacy.

-jcr

Re:It's a search without a warrant.

[jcr]

the overwhelming majority of the US debt is owned by the US Government itself.

You know, if any private organization replaced its pension funds with its own bonds, someone would be doing time for it.

-jcr

Re:It's a search without a warrant.

[jcr]

It's not a religious writing, it's a contract. It is the entirety of the legal basis for the power of our government. If we permit them to ignore it for convenience, then we no longer have the rule of law, we have the rule of men, and history has shown us many times that an unlimited government is extremely dangerous.

-jcr

Re:It's a search without a warrant.

[Anonymous Coward]

I would much rather have people being rabid fundamentalists about the US Constitution than most of the 'real' religions in the world today.

The Constitution can (and has) changed over the years. It's not the 'same' document from 200 years ago, but mostly is. Most of the principles that were instilled into it are still relevant today, though there were things in the Constitution that the founding fathers probably never dreamed would happen (I'm pretty sure '90 years past the death of the author' as a copyright term would probably fall under their definition of 'unreasonably long'.).

The problem with changing the Constitution is that it takes a huge amount of effort and a large majority of the population needs to be behind it. This is a double-edged sword. It means that the Constitution doesn't just get changed on a 'whim' of the current political ideas, but it also means that there are some very good ideas that should probably be inserted into the Constitution that don't even get mentioned because of the general-public's apathy towards any political isn't that isn't religiously or emotionality charged.

Re:It's a search without a warrant.

[tftp]

An AC already replied to your comment, but it's worth repeating - "you have to start somewhere", this rule applies to everyone, including tyrants and their secret police. Even the kind of police that you mentioned wasn't born overnight with full powers and with torture tools at the ready. Everything is sold to the public as a good, necessary thing, and then it is modified by further laws and events until it becomes something else entirely, and you are left wondering how could it happen.

In this particular case the practice of searching laptops (among others) is cementing the power of authorities. Far from being a limited government with enumerated functions, it assigns rights and responsibilities to itself exactly as you'd expect a career-obsessed bureaucrat to do. The more duties the careerist has the more irreplaceable and important he becomes, even if he fails at many of these duties. Same with governments. Once they have fingers on every button such as, fictionally, finances, industry, healthcare - on top of traditionally mandated ones like wars - it makes itself an essential part of the society and acquires nearly unrestricted power over your freedom and life. There is even a word for a society where the rulers exercise absolute power over population; it's called a dictatorship. The dictator doesn't have to be a single person, USSR and China amply proved that.

Re:It's a search without a warrant.

[Ihmhi]

IANA Constitutional L, but I think the Seventeenth Amendement quite possibly did some of the worst damage ever to our political system.

For the uninformed or for those too lazy to click the link, before the 17th amendment was ratified in 1912 Senators were appointed by the state legislature instead of elected directly by the people.

If a Senator stepped out of line with what the people wanted, they could bitch to the state legislature and the state legislature (which is easier to control by the people than the federal legislature) could go as far as recalling a Senator if need be.

Because of the way things are now, once a Senator is elected there's nothing we can really do to influence them much aside from trying to get a recall vote (which is very difficult), "contributing to their campaign fund", or them getting caught with their hand in the proverbial cookie jar.

Re:It's a search without a warrant.

[Jarjarthejedi]

You have no idea what Rule of Men means do you? Rule of Law is when something is written down as law, immutable (to a certain degree) and applying to everyone. Rule of Men is where the only law is whatever someone says today, and it can change tomorrow.

The Constitution is Rule of Law for the simple reason that if the president (for example) wanted to arrest someone for the crime of having a certain video game he can't do it, because it's not a legal thing to arrest someone for. Under Rule of Men that's entirely possible assuming the President determines the law.

Re:It's a search without a warrant.

[Omestes]

Bleh... Isn't there an internet law that basically says; "when correcting someones grammar, you will inevitably make a stupid mistake in your own grammar"?

If not, there should be.

Re:It's a search without a warrant.

[Atario]

It seems you're ignoring the "PURPOSE" of the whole Constitution, which is defined by:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility[1], provide for the common defence, promote the general Welfare[2], and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

[1] Not a lot of domestic tranquility follows when any idiot can brandish any powerful weapon he wants (thus, the liberty-crushing principles that grenades, fuel-air bombs, land mines, tanks, missiles, nukes, and certain high-output firearms should probably not be floating around the general public).

[2] I don't know about you, but most people's general Welfare pretty strongly hinges on having health care without worrying about becoming an indentured servant by taking it (thus, the socialist bogeyman of universal health care enjoyed by every other developed nation in the world (and some pretty undeveloped ones too)).

I'm having trouble finding any justification in there for border laptop searches, but of course I could be biased.

Re:It's a search without a warrant.

[Attila Dimedici]

Actually, the advantage of the pre-17th Amendment method of selecting U.S. Senators was that the Senators then represented the interests of the state as a whole/the state government. As opposed to now where they are answerable to popular sentiment. The members of the state legislature are more likely than the general populace to understand the "unintended consequences"** of any given federal legislation than the general populace.


**I put the quotes around unintended consequences because with increasing frequency the consequences were intended, but nobody was supposed to notice until after the bill became law.

Re:It's a search without a warrant.

[commodore64_love]

Is it reasonable to search people at the borders? I think so - it's the job of the U.S. to protect from foreign enemies entering domestic soil. Is it reasonable to search me, my car, or my laptop if I'm driving down I-10 from California to Texas, or I=90 from Washington to Maine, enjoying my vacation, and never once crossed the border? Absolutely not. And yet they do it all the time. This needs to be stopped.

>>>establish checkpoints on public highways in the vicinity of the Mexican border, even if those checkpoints are not at the actual border.

Yes these checkpoints are allowed, but the U.S. Supreme Court has laid ground rules. They are not allowed to stop every car, nor are they allowed to search the cars they do stop, unless they first obtain a warrant. These checkpoints have been abused for awhile, with guards even yanking innocent citizens from their cars and beating them. LINK - http://www.youtube.com/watch?v=WVMZUgmrJrk VICTIM TELLS HIS STORY - http://www.youtube.com/watch?v=YUzd7G875Hc

This is why the American Founders revolted against the British Empire, and wrote a Constitution to protect individuals from these kinds of abuses. They were tired of having their individual human rights violated (soldiers quartered in private homes, taxation without representation, et cetera), and wanted to make sure their new government was restrained from doing the same.

Re:It's a search without a warrant.

[Attila Dimedici]

The logical conclusion is that warrants are not required in all circumstances, and national borders would seem to be an appropriate location for some amount of searching (for contraband, at least). As there is no prohibition on data entering the country, I'm at a loss as to why border agents would be interested in or have authority to search laptops beyond checking that they are, in fact, actually laptops.

Has anyone on here heard of a thing called a "diplomatic pouch"? If not, they are a briefcase or bag or other container that contains communications from home government to an embassy in another country. They are, by international treaty, exempt from border searches. Diplomatic pouches are not a concept that was developed in the U.S., as a matter of fact, it is a concept that was developed before the U.S. was a significant player in international affairs.
Now, why do diplomatic pouches exist? Because letters going across borders are subject to being opened and examined by the governments of many countries and it was felt that allowing a government to communicate with its embassy without the host government knowing the contents of the communication was desirable.
Therefore there is obviously a longstanding tradition of governments examining information crossing into their country. Laptops are merely a technological method of carrying information. There is nothing novel about searching laptops, it is in a tradition going back as long as modern diplomacy.

Re:It's a search without a warrant.

[commodore64_love]

>>>The Constitution gives Congress the duty to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare"
>>>

That's only the first half of the sentence. You need to read the WHOLE sentence. To quote the Author of the Constitution James Madison - "For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity." (Federalist 41)

He further clarifies: "If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." (James Madison, Letter to Edmund Pendleton, January 21, 1792)

And finally if you're still confused, just read the Supreme Law for yourself, which makes clear most powers belong to the State governments, not Congress: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Re:It's a search without a warrant.

[avxo]

So your argument is that because (a) Judges and Justices are people and peope may err and (b) Scalia made a monumental blunder, somehow all decisions are equally flawed? I call bullshit.

Re:It's a search without a warrant.

[Stupendoussteve]

In many ways it's because it is meant to be. The Constitution was made to limit the Federal Government, it's no surprise (especially since many politicians are lawyers) that the Fed does as much as it can to get around those limits. Unfortunately the states and the people, which are supposed to hold the majority of the power, do not really call them out.

National security...

[bfmorgan]

They roll out the "We can't release this information because of National Security" excuse one more time.

The 4th amendment is only for criminals!

[www.sorehands.com]

Why would you want to hide anything from the government? Why would you not want them to keep all your personal information indefinitely?

What do you have to hide? You must be a communist^h^h^h^h^h^h^h^h^h criminal^h^h^h^h^h^h^h terrorist since you want to have privacy from the government.

Re:Very Tricky but pathbreaking area

[jcr]

If ACLU wins based on fourth amendment basis on the right of people to be secure in their persons & papers, then the border searches will be extremely time consuming as each search will need to accompanied by a warrant from a judge.

You say that like it's a bad thing. I for one don't consider it advantageous for violations of my right to privacy to be simple and convenient for all concerned.

-jcr

These peanuts are the BOMB!

[BrookHarty]

Its a fishing expedition, they dont have cause other than visiting a 3rd world country. Visiting a 3rd world country = sex crimes they say, wrong.

Myself, I'm such an asshole, I'd military format the laptop HD, with a "FUCK CUSTOMS!!!" dos bootup banner, before I come back into the USA, after I copied anything over the Internet to my home PC. Of course I'd lose my laptop, because they would take it to scan the HD for anything.

Really, I'm already pissed I have to take my shoes off to fly, like my shoes are now a terrorist threat.

When they hire bagage handlers at minium wages, and these fuckers steal laptops. I read that over 1000 laptops are stolen from the aiports a week. WTF? So by this logic, if there was a terrorist threat, they could just plant a bomb on the luggage.

I'm so tired of the "Security theater" show they put on. its a scam. At least some of us are actually calling them out on this bullshit. Bravo for the ACLU for doing this. I walk a fine line at protesting and getting tazed for being a smart ass. I know one of these days my comments at "these peanuts are the bomb" are going to land my ass in federal prison. But at least I can write a book and make a million..

Damn what a country.

Re:Very Tricky but pathbreaking area

[belmolis]

I don't think that all of the consequences you propose are realistic. If the courts decide that warrants are necessary, the result will be the termination of most laptop searches, for two reasons. First, the burden of obtaining a warrant for each search would be prohibitive. Second, a judge will only issue a warrant if there is probable cause, which in most cases there won't be.

As for dragging people to the border to search them, that won't happen because the US government lacks the authority to remove a citizen from the country except by court ordered extradition. Note that bringing a US citizen to the border would not be sufficient to license a warrantless search: it would be necessary to remove him from the US since customs inspection applies only to persons entering the US from abroad.

Re:Very Tricky but pathbreaking area

[nickheart]

Three cheers! Just because I have nothing to hide doesn't mean I'm not offended when my privacy is offended.

Re:more info

[asticia]

And if I enter country with freshly formatted laptop? Like wiped completely clean. Will it be suspicious as well? Sure they may want to find something behind it. I do not wanna get my laptop being held for indefinite amount of time just because I bought it day ago and haven't had time to bring it up yet ...

The really scary part,

[FSWKU]

And the part that concerns me the most, is how they would likely defend against "unreasonable search" allegations. All they have to do is say the search is reasonable based upon suspicion that ANYONE travelling outside of the country could have been doing so for "evil" reasons. This could get them a magic "propable cause" allowance, and your stuff is still siezed/searched. So now we have the government worried that all people travelling abroad are potential terrorists, but they will hastily point out that it's only for people travelling abroad. There are no internal searches anywhere in the US (nevermind the dubious truth of that matter). Lovely choice you have their. Give up any/all information privacy, or never be allowed to leave your country. Sounds a wee bit too East Berlin to me...

Re:The really scary part,

[jcr]

All they have to do is say the search is reasonable based upon suspicion that ANYONE travelling outside of the country could have been doing so for "evil" reasons

That's why we separated the executive and judicial powers in the constitution, and required anyone making such a claim to swear to it, and to convince a judge that their suspicion is reasonable before the judge can issue a warrant.

-jcr

Hide your private information on a USB stick.

[bezenek]

Carry a large USB stick. Back up your personal information (browser history, saved email, etc.) to it and put it in your pocket or even better, mail it home to yourself at your destination before you board the airplane. When you arrive, replace the personal information.

Looking through browser history is equivalent to asking you to provide your personal diary in order to get into the country. Similarly, looking at your saved email is equivalent to requiring you to bring copies of all your personal correspondence for the previous 12 months in order to get into the country.

This is really, really disgusting, and should not happen in the United States of America.

Todd

Re:Hide your private information on a USB stick.

[Attila Dimedici]

Looking through browser history is equivalent to asking you to provide your personal diary in order to get into the country. Similarly, looking at your saved email is equivalent to requiring you to bring copies of all your personal correspondence for the previous 12 months in order to get into the country. Todd

If you were carrying your personal diary when you crossed the border, customs can legally read it. If you are carrying your personal correspondence for the previous 12 months when you cross the border, customs can legally read it. Just because you are carrying it on your laptop doesn't change that.

Re:Very Tricky but pathbreaking area

[jcr]

I'd got a bit farther than that, and say that i consider it a citizen's duty to require public employees to obey the law. If a cop ever wants to search my car in the future, my answer will be "officer, sorry for the inconvenience, but if you believe you have probable cause to search my vehicle, then you shouldn't have any difficulty convincing a judge to issue a warrant. I'll wait."

-jcr

Re:Two words..

[MichaelSmith]

Never, ever carry porn over a border. Anywhere.