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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."
You can read the ACLU's press release here and its Freedom of Information Act request here.
I'm also curious as to what happens when information is encrypted. In the case of a non-citizen, they may be able to refuse entry if someone will not decrypt it, but they can't refuse entry to a US citizen.
Legally pathbreaking but also very potentially damaging.
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.
In short people will start to hate the border patrol more and DHS will get the blame.
OTOH, if the judge decides that People are NOT people until they enter USA and that the laws of the land do not apply to them until they enter, then it becomes much more abusive.
Border Patrol can easily strip search every 18-yr old girl, in the presence of her parents, and easily barge through every suitcase she has. Also, they can drag a "Person of Interest" to the border, search him, and bring him back.
This raises hackles everywhere.
"Doing what i can, with what i have." ~ Burt Gummer
Now, let's be clear here, I'm surprised that the ACLU is getting involved in this, it being a genuine civil rights issue and all, but the fourth amendment does not say what you think it does.
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.
I'm not sure what the underlying right this thing is supposed to affirm, but the writers seem to have left themselves some wiggle room in key phrases like, "unreasonable searches." Why did they specify "unreasonable" searches as prohibited and not just "searches." without qualifier? The tenth amendment would seem to apply at least, but when have we ever seen the government actually obey the tenth?
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.
Can you be Even More Awesome?!
Actually, some data is prohibited, e.g. child pornography. In any case, the claim is that they are looking for evidence that the owner of the laptop is a terrorist. The documents that constitute such evidence might well not be prohibited entry, but they would be useful in determining whether or not to admit the bearer. It's just like examining someone's papers. There's nothing illegal about bringing identification papers into the US, but if someone claims to be a tourist and turns out to have papers that identify him as, say, a member of an Iranian intelligence agency, that would bear on whether or not to admit him to the US.
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?".
What happened to the whole idea of freedoms and liberty for all that every US history class tells you America was founded on?
The more I hear about this kind of thing happening, the less I want to visit the US and chance of me doing business with American businesses gets lower and lower.
It seems to this foreigner that the US government needs to be told to pull it's fucking head in and act like a government - not the Gestapo.
Sendmail is like emacs: A nice operating system, but missing an editor and a MTA.
But... aren't the laptops already across the border when they are searched? The border is a very very thin line, so either these searches are being conducted in (say), Mexico without the Mexican Governments permission, or they are being conducted inside the US. At which point has it been defined that the US border is a fuzzy line a mile wide - and why are Mexican "illegals" not permitted to step foot within this fuzzy line when apparently the laws they are trying to get to are permitted to get bent there.
Me failed English...
FreeBSD over Linux. If my comments seem odd, this may explain...
Not once have I had to surrender my fingerprint(s) to cross the border of an EU (or even non-US) nation.
Not once has my laptop hard disk been imaged and stored as I crossed the border of an EU country.
Not once has my employer outright banned carrying our work-a-day laptop on trips to EU countries. My last employer, a large US company subsidiary, even issued clean machines to people travelling to the US because (clearly) the corporation doesn't trust its own government officials. Of course, all our files were still available on the global corporate network, which made a joke of the border controls anyway.
Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button
Hidden Partition........ Put your pr0n and silly stuff there, keep the rest of the drive clean and clear. There searches are still unreasonable, but they can't fuss about what you have on there in this case
If you have pr0n, keep it on a Flash drive using HFS or ext3. Since all government computers are Windows, it'll ask "Please format drive." when you stick it in. BOOM! Instant win!
What would be interesting to know is some figures on: # of searches, country of origin of the person (e.g. American citizen returning from vacation in England VS American Immigrant returning from vacation in England), gender - it would be real interesting to find out how many women or % of all female travelers have laptops searched.
Likewise, how many mega-millionaires, diplomats, US Politicans, Law enforcement or Judges have been searched? I'd be willing to bet if enough of them are searched laws will change real quick.
Who does the imaging of the drives? I'm asking in the sense of an even further reaching-question. Suppose someone working for a Secret or TS level clearance (these examples are piss poor but just to make the point: an aviation engineer or IRS employee) is coming back across the border. Worker brought their S or TS work with them on laptop encrypted etc. etc. overseas on a project/assignment. Guy looks a bit nervous/sweaty. Border people know he's a gov't employee but decide to him anyways. He "looks" suspicious.
Wouldn't the person imaging the hard drive get into a huge heap of trouble if they manage to access and keep the S or TS data especially if they don't have that level of clearance?
By extension, if the data isn't properly secured after imaging -especially if undetermined retention time- and your company's - data gets stolen. Couldn't there be a massive lawsuit as a result of the loss of the data - competitor could have it, etc?
Yeah, it's real cute how that works, isn't it?
BTW, I love your sig :)
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
What is the point of these searches? Anyone with a hint of intelligence, who are planning on doing something illegal, would just upload whatever illegal material they're carrying, and wipe the disk. Then they can just download it from the net once they've passed customs.
I setup the browsers on my computer and iPod Touch to clear history on exit. I also use Firefox and set the history parameter to zero days. I wonder what they'd do to me?
If they look through my pictures they'll find mostly boring stuff.
"I mean it is 200 years old document, some of it is hardly relevant today."
I call bullshit. There is nothing in the constitution of the United States, or the amendments, that is irrelevant today. The amendment prohibiting the possession and consumption of alcohol is irrelevant, yes, BUT, there is a subsequent amendment repealing that amendment. It is a nice tidy document, which defines how government should be run. All other laws are supposed to fit within that guide.
That very relevant document is the litmus paper used to test all other laws in this nation.
It hasn't been necessary to change that constitution very many times, because the people who wrote it put a lot of work, and a lot of foresight into it.
I'll thank you not to declare my constitution as irrelevant. I rely on it for my freedoms of speech, my right to vote, my right to bear arms (yes, my PERSOANAL RIGHT to bear a firearm), my right to life, liberty, and the pursuit of happiness.
That document is so relevant, that I am perfectly willing to go out and fight for it despite the fact that I'm an old bastard with sons in uniform.
Thank you, I'll step down off the ammo box now...... (an ammo box can be used for a soapbox or a ballot box, there's no need to keep three seperate boxes around)
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
But the Constitution was written by men. It's still the rule of men, it's just the rule of men from 300 years ago.
I do agree with what you're saying, though. It's something people should read more than a couple times in school and then forget about it. Such a sad state we're in these days...
Random Thoughts From A Diseased Mind (Not For Dummies)
The cultural influences I received growing up conditioned me to see asking for my fingerprints as equivalent to saying that I'm a major suspect in a crime. Therefore routinely asking for fingerprints is worryingly close to "Guilty (we don't know of what, but we'll find something) until proven innocent" - which does indeed seem from an external point of view to be the basis on which US immigration works.
[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).
So in your eyes, "certain high output firearms (which inevitably means ALL firearms)" are equivalent to weapons of mass destruction. Have you every considered therapy?
[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)).
So is that why they come to the U.S. to get their surgeries done, if they can afford it? Listen, our unbridled profits lead to the lion's share of world's medical advances... and it's not unrealistic to suppose that much of the capability of other countries to provide care for cheap hedges on the fact that one country is taking it for the team, by actually developing the things. Secondly, have you ever asked your mom: "But Bobby's mom let him do X, why can't I?" and gotten "I am not Bobby's mom" in response? Well, it's kind of like that. Not everything works everywhere.
But assuming you're right, and everything is applicable everywhere (tell that to the Russians and Iraqis) shouldn't you be telling the Swiss that the fact that they keep their M-16s (read: high-output firearms) at home after their military service is negatively affecting their domestic tranquility, low crime-rate and all?
What happened to the whole idea of freedoms and liberty for all that every US history class tells you America was founded on?
when you grow older (like, when you leave junior high) you realize it was all a lie and that the US is not some wonderful disney movie where the good guys wear white hats, etc.
the US laws, like most other countries, are REALLY setup to control and push down the populace. laws are not there to make your life better; they're there for the power guys in control to keep them in control. these days, that also means keeping a nice bit of fear always going.
all this is RIGHT out of 1984. I read that as a child, some 40 years ago, and I'm seeing so much of that story come to life, its not even funny.
part of the problem is that those who are making the laws have often been above the law. given the class system (lawmakers, cops, lawyers, politicians and even TSA) - there is no way regular old joe citizen can preserve his privacy or civil rights in today's world (not just US but the whole world is catching onto this anti-freedom craze).
revolution. nothing else will fix it. sorry to say that but the system is beyond repair. we're watching it fully melt down in front of our eyes. I expect a revolution (or collapse) in the next 10-20 years, if it even takes that long.
until then, just keep your head low. (yeah, I ignore my own advice a lot, huh?)
--
"It is now safe to switch off your computer."
The difference was that the Senator would be much more likely to defend the state government's interest. One of the major points of our system, even after the articles of confederation, was to have many strong state governments overseen by a weak federal government. This allows for a lot of things, such as letting different states set different laws, and may the better one win (the whole competition thing; much easier to move between states than between countries).
However, the federal government has been gradually taking a greater share of power to itself. The Seventeenth Amendment was one of the major tipping points. Now Senators have absolutely no stake in defending State power (the seemingly forgotten Tenth Amendment) and we get ridiculous things like the federal government taking money from the states for road construction, and then only giving it back with strings attached (this is increasingly happening in education, and it's quite... educational, dare I say, to plot the results of US students on international tests over time with the level of federal involvement in education over time).
In any case, read up on the debates between the federalists and the anti-federalists if you're curious about why some people view this as a problem.