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.

[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.

[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.

[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.

[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]

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.

[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.

[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.

[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.

[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.

[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.

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: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: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

[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

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...

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: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.

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.