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.

[zippthorne]

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.

Re:It's a search without a warrant.

[belmolis]

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.

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.

Re:It's a search without a warrant.

[CRC'99]

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.

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.

[Atlantis-Rising]

It has always been my understanding that the Supreme Court has determined that the border is where the powers of the executive to order searches has been at its zenith.

More precisely, warrants are not required at the border.

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

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.

[GumphMaster]

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.

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.

[aynoknman]

IANAL, but IAACWSTDHSTTATTTUSA*

My understanding is that any attempt to board a plane or cross a border, implies consent, which makes the searches consensual. If you don't want to be searched, don't try to get on the plane or enter or leave the country.

*I am a Canadian who since the Department of Homeland Security, tries to avoid traveling to the USA.

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.

[Shakrai]

Oh right, totalitarianism under the rule of the Chinese (who own the US)

Please stop repeating this myth. China doesn't "own" the US. It doesn't even own a majority or even a quarter of the outstanding US debt. Here is an interesting pie chart for your consideration. The data is a little out of date (I believe the Chinese have since surpassed the Japanese as the largest foreign creditor) but it shows that the overwhelming majority of the US debt is owned by the US Government itself.

This is what happens when the Government borrows money from the social security trust fund and other such accounting gimmicks. The second largest holder is American citizens and institutions. Foreign creditors account for the remainder, of which China doesn't even have a majority.

BTW, I agree with everything else you said.

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.

[failedlogic]

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?

Re:It's a search without a warrant.

[Shakrai]

Yeah, it's real cute how that works, isn't it?

BTW, I love your sig :)

Re:It's a search without a warrant.

[arminw]

... it's up to the officers who wish to exercise that power to prove their legitimacy....

BS. It is up to the courts, the Supreme Court specifically, to decide what power the officers are allowed to exercise under the Constitution. Apparently they have decided not to significantly limit the searching authority of customs and immigration officials that country's borders. Apparently, the usual protections against searches do not apply at border entry points.

Re:It's a search without a warrant.

[arminw]

...that it's an unreasonable search...

Honestly, if they are allowed to search all your luggage, why should they not be allowed to search through your laptop as well? Where does anybody here on /. get the idea that digital information is somehow privileged above real-world goods? If you have such super-secret information, why carry it on your laptop? Put it safely encrypted on a server either in the USA or elsewhere and then access it over a secure Internet connection. For crying out loud, is it really necessary to carry your entire pron collection across borders?

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.

[Runaway1956]

"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)

Re:It's a search without a warrant.

[gnud]

Japan requires fingerpints.
Since visiting Japan, I can sleep safely knowing that every western spook archive now has my fingerprint on file.

Re:It's a search without a warrant.

[jcr]

BS. It is up to the courts, the Supreme Court specifically, to decide what power the officers are allowed to exercise under the Constitution

Yes, that's where the proof has to be shown.

Apparently, the usual protections against searches do not apply at border entry points.

That remains to be seen. Cases against the border patrol are pending.

-jcr

Re:It's a search without a warrant.

[Ihmhi]

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...

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.

[TubeSteak]

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.

Now you're just being obstinate without replying to what I've said.

I'll break it down for you:
1. 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"
2. The Congress granted authority to Customs to conduct routine searches and seizures without probable cause or a warrant
3. Customs has been searching and seizing ever since.

The last two big cases were US v Flores-Montano and US v Arnold. In both cases, the border search exception was upheld, as the routine search was not invasive and did not violate the individual's dignity.

In US v Flores-Montano, SCOTUS references an earlier case:

The same Congress that passed the Fourth Amendment
explicitly permitted customs officials to board
ships and vessels "for the purposes * * * of examining
and searching" the ships and vessels and to "examine
the cargo or contents" of those conveyances as they
entered this country.

Act of Aug. 4, 1790, ch. 35, 30,
31, 1 Stat. 164; see 29, 1 Stat. 164 (permitting customs
officials to "examine[]" unloaded parcels and packages
containing dutiable items). This Court has recognized
that the Nation's earliest laws authorized "the examination
of ships and vessels, and persons found therein,
for the purpose of finding goods prohibited to be imported
or exported, or on which the duties were not
paid," and "[t]he search for and seizure of * * * goods
liable to duties and concealed to avoid the payment
thereof." Boyd v. United States, 116 U.S. 616, 623
(1886); accord Maul v. United States, 274 U.S. 501, 505
(1927) (explaining that customs officials had power to
"board and search vessels bound to the United States
and to inspect their manifests, examine their cargoes,
and prevent any unlading while they were coming in");
U.S. Br. 21. Those laws imposed no requirement of
suspicion in order to search. Indeed, Congress in 1799
confirmed that customs officials had the power, "whenever"
they "shall think proper," to search the baggage
of international travelers. Act of Mar. 2, 1799, ch. 22,
  46, 1 Stat. 662.2

Is 210 years worth of precedent not good enough?

I have more than fulfilled my burden, now it is upon you to support your position.
I ask again: Can you provide any citations that say Customs is not allowed to search anything at the border?
/With the understanding that searches of a person's body are by definition not routine and are have a higher burden.

Re:It's a search without a warrant.

[Ian Alexander]

It's a well-established legal principle that your constitutional rights don't really apply at the border. Inside the border, of course you have rights. But at the border they can pretty much search whatever they want. If they feel like tearing apart your vehicle, piece by piece, just on the offchance you might have hidden contraband, that's legal, and there's no requirement that they compensate you in any way or put it back together. If they can do that then I figure they probably have the right to poke around your hard drive.

And, as has obviously already been mentioned, not all searches require warrants. Terry stops. "probable cause" searches of, say, a vehicle. Exigent circumstances.

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.

[Atario]

Ah yes, terrorism. The new boogieman that replaced drunk driving and child molesters.

Oh, believe me, they weren't replaced. Child molesters are for when you find others' sexuality uncomfortable and need to pass a law against it; drunk drivers are for being able to arrest anyone who drinks or drives (covers lots of cases, and magically allows you to set up police checkpoints wherever and whenever you want); and terrorists are for Dirty Foreign Brown People who have sneakily avoided the other two.

Re:It's a search without a warrant.

[pjt33]

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.

Re:It's a search without a warrant.

[avxo]

You ask for proof, so I'll briefly point out United States v. Montoya De Hernandez , United States v. Flores-Montano , United States v. Ramsey and of course the relatively recent cases of United States v. Arnold and United States v. Ickes. The judicial predecent is pretty firmly established: the government has a legitimate interest in knowing who is coming into the country and what is being brought in. As a result, the government has singificant leeway (but not a carte blanche) to conduct searches at the border without running afoul of 4th Amendment. Feel free to ignore all this, but the Courts don't.

Re:It's a search without a warrant.

[julie007]

...or them getting caught with their hand in the proverbial cookie jar.

Even that doesn't work all of the time...

Re:It's a search without a warrant.

[Chris Mattern]

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.

There's so much wrong with that statement it's hard to pick a point so I can coherently counter your foolishness.

That said- I assure you that the founders of this country didn't believe we needed protecting from ourselves.

On the contrary, his statement is very, very correct. Start by Googling the Stanford prisoner experiment. Then you can go on to the Milgram experiment. It's not pleasant reading.

And the founders were extremely aware that we needed protection from ourselves. They regarded it as the primary problem in constructing a fair and stable government, in fact. As James Madison said in the Federalist Papers, "It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

Re:It's a search without a warrant.

[TheMeuge]

[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?

Re:It's a search without a warrant.

[TheGratefulNet]

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?)

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.

[Anonymous Coward]

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.

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.

[Civil_Disobedient]

Listen, our unbridled profits lead to the lion's share of world's medical advances

This is pure, 100% USDA approved genuine horseshit. That it keeps getting trotted out as some ace-in-the-hole to forgive our ass-backwards healthcare system is symptomatic of the ignorance most Americans have of world history. Let's take a look at some of the "big-time" medical advances of the last century, shall we?

• Penicillin: UK
• Heart Transplant: South Africa
• Aspirin: Germany (by way of France)
• X-Rays: Germany
• Valium: Switzerland
• Antidepressants: Switzerland
• Pap Smear: Greece
• ...et-fucking-cetera...

The US has certainly had its share of medical contributions, but the most visible (and shameful) has been the commercialization of medicine--pharmaceuticals in particular, and the artificial restrictions on distribution that generate such wonderful, lovely profits.

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.

Here's an idea

[Anonymous Coward]

put a single txt file on the desktop that says something like...

I put all my illegal materials on the OTHER laptop

;-)

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:The 4th amendment is only for criminals!

[highplansdrifter]

Socialism is an economic policy, not a personal freedom policy. The US is accelerating towards totalitarianism. Oddly enough I recall having entered a number of those socialist countries that some Americans like to rant about without any ridiculous searches.

more info

[belmolis]

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.

Re:more info

[rhook]

Its not non-compliance when a federal judge has ruled that you cannot be forced to reveal your encryption keys. http://news.cnet.com/8301-13578_3-9834495-38.html

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 ...

Very Tricky but pathbreaking area

[freedom_india]

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.
 

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

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

[jcr]

a judge will only issue a warrant if there is probable cause, which in most cases there won't be.

Well, a judge who takes his duty seriously will hold to that standard. Sadly, law enforcement officers routinely find pet judges who'll issue a warrant just because the cop says he wants it.

-jcr

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:Very Tricky but pathbreaking area

[jcr]

Follow Radley Balko's stories at Reason.com.

-jcr

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

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:These peanuts are the BOMB!

[BrookHarty]

By the way, yes I'm drunk when I posted this. :)

Re:These peanuts are the BOMB!

[sukotto]

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

Just be glad that Reed didn't have that tiny little wad of explosives tucked into his underpants...

Re:These peanuts are the BOMB!

[Minozake]

One pass is indeed enough.

http://blog.epcusa.com/2009/03/data-destruction-is-one-pass-overwriting-enough/
http://www.anti-forensics.com/disk-wiping-one-pass-is-enough-part-2-this-time-with-screenshots

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:Two words..

[MichaelSmith]

Never, ever carry porn over a border. Anywhere.

What is the point?

[lovemayo]

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.

Oh really?

[kilodelta]

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.

Not necessarily

[Sycraft-fu]

What a judge could well rule is that the searches are allowed, but they have restrictions as to what they can do afterwords. This is rather likely. The searches themselves are probalby legal. The supreme court has ruled on the issue of border searches and said that the government has the right to secure its borders and that part of that can be to search a person and their belongings. Their view is more or less that you KNOW you can be searched at the border, so it isn't reasonable for you to assume privacy there.

Ok, but that was back in the day when laptops and such weren't an issue. This was regarding a physical search. So while they can look through your bag for drugs, once they are done with the search you and your belongings are on their way, provided you don't have something illegal.

The problem here is that they are taking laptops, without charge, warrant or even reasonable suspicion, holding them for indefinite times, and refusing to say what they do with them. They won't say what they are looking for, who can get a copy of the data, how long it is retained, when you get your hardware back, nothing. That is rather different than the kind of search the SC said was ok.

So it could well come down that searches are ok, but this kind is not, or that they have to have specific limits on the data they get and so on.

You discover it is like that in Canada. They can search your, and can seize your laptop with a reason. However there are specific limits as to what can be done and how long they can have it, and they are up front about it. You can find them online (which is how I know about them). That's real different from the US where DHS just says "We can do what we want and don't have to tell you anything."

I would predict that is how this will go. The government will be allowed to search you at the border, however they'll be told they can't just grab laptops and hold them forever with no accountability.