Challenge To US Government Over Seized Laptops

angry tapir writes "The policy of random laptop searches and seizures by US government agents at border crossings is under attack again: The American Civil Liberties Union is working with the National Association of Criminal Defense Lawyers to find lawyers whose laptops or other electronic devices were searched at US points of entry and exit. The groups argue that the practice of suspicionless laptop searches violates fundamental rights of freedom of speech and protection against unreasonable seizures and searches."

Comments

Policy document

[bsDaemon]

I know that hardly anyone is going to read this (i just found it myself), but before we all go ranting on about this, it might be helpful to actually read the policy document with regards to search and seizure of electronic equipment by the Customs and Border Patrol: http://www.cbp.gov/linkhandler/cgov/travel/admissibility/elec_mbsa.ctt/elec_mbsa.pdf

Re:Policy document

[jittles]

Looks to me like the document says they can choose to search for any reason and they may or may not have to disclose that search to you and even if they disclose that search they may or may not have to let you watch that search.

Every single privacy protection in that document had an escape clause that allows them to circumvent that protection in the interest of national security, or some other loophole. That policy document doesn't make me feel any better about the matter.

Re:Policy document

[YouWantFriesWithThat]

the policy document most emphatically does not state that the searches take place in your presence.

you missed the part about how they can seize the information (make a copy) or the device that it is on and search it at an outside location, with or without specialized help (translation, decryption, subject matter assistance, etc.) and only are required to destroy it if it is determined not to contain probable cause to seize it. that is ignoring the fact that they have, in fact, effectively seized it already.

C. Detention and Review in Continuation of Border Search [...] Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.

Re:Policy document

[Jeremy Erwin]

Mincey quotes Katz v. United States 389 U.S. 347 (1967)

Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [n18] -- subject only to a few specifically established and well delineated exceptions. [n19]

18. See, e.g., Jones v. United States, 357 U.S. 493, 497-499; Rios v. United States, 364 U.S. 253, 261; Chapman v. United States, 365 U.S. 610, 613-615; Stoner v. California, 376 U.S. 483, 486-487.

19. See, e.g., Carroll v. United States, 267 U.S. 132, 153, 156; McDonald v. United States, 335 U.S. 451, 454-456; Brinegar v. United States, 338 U.S. 160, 174-177; Cooper v. California, 386 U.S. 58; Warden v. Hayden, 387 U.S. 294, 298-300.

You can look up the well defined exceptions yourself. More importantly, both Mincey and Katz predate the Rehnquist court, so best Shepardize those citations.

Re:Border crossing and the fourth

[dkleinsc]

Electronic information sent without having it physically stored on the laptop will get picked up by the NSA in room 641A as a matter of routine.

Of course, that's easily gotten around as well: you use an encrypted connection with a key transferred via non-intercepted means, but that's the theory which those who want a police state operate with. There's a reason the original attempt at this sort of routine searching was named "Total Information Awareness".

Lawyers aren't diplomats

[sirwired]

When it comes to border crossings, lawyers are not different from any other citizen. The only things exempt from search at the border are diplomatic pouches.

SirWired

Re:Lawyers aren't diplomats

[cenc]

The state is not allowed, even when exercising a search warrant in a criminal investigation, to simply walk in to an attorney's office and take everything like they do with normal citizens. There are very strict rules that have to be followed in order to protect attorney client privilege (often a third-party attorney is brought in to examin what the police can look at ).

Often the very nature of an attorney's work is such that even the disclosure that a client is a client (domestic abuse cases, general criminal cases, divorce), can be damaging to clients that have nothing to do with a particular investigation. The State would be trampling the rights of innocent third-parties by just randomly seizing and holding attorney documents whenever they like.

Those documents have the potential, especially if contractors are hired to examen drives, to fall in to the wrong hands or be put in a position that they can be admissible in to court. More commonly information that is strictly confidential and directly not admissible to court, gets used to find stuff that is admissible in court.

Re:Lawyers aren't diplomats

[Rathum]

The only things exempt from search at the border are diplomatic pouches.

hmmm, reread the 4th amendment several times and never saw that...

That's because you need to read Article 27 of the Vienna Convention for Diplomatic Relations. The United States still has to honor treaties.

Re:You don't have those rights at border crossings

[corsec67]

Or just redefine border

Re:Attorney Client Privilege

[Anonymous Coward]

--
I won't reply back to Anon. Cowards. Show the courage to log in so I'll know you get responses. You won't waste my time.

We don't care.

Seizure and privacy are the key

[what about]

I did travel to US a some time ago when things where more relaxed, airport control was reasonable.

It would be very upsetting and damaging if US border seize my laptop for no reason whatsoever and keep it indefenitely.
It is important to remember that the laptop is NOT a forbidden item or somewhat illegal, they keep it, just in case.
If it is the info they are after then just clone the HD and give the machine back !

On the privacy issue, it is clear that technology is extending our brain in terms of "storage capacity", kind of like a diary but in a way that is beyond a book in terms of search, speed, capacity. To me laptop search is like rumaging into your own mind diary, looking for connections, events, stories. Fair point if you at least have some lead of illicit activity otherwise it becomes just fishing for something, you never know.

I know that facebook just said that "privacy is over", I just hope we will not have to put up a real fight sooner or later to get our privacy back from our big brother.

P.S. Regarding catching "terrorists" at border crossing, what about some working intelligence ? Really, how can you trust the government when some many screwup happens so often... why normal citizen cannot record what police do ?

Re:Border crossing and the fourth

[Jeremy Erwin]

It says nothing about the rights of Citizens, either. If you want to make a "plain and clear text" argument, don't alter the text.

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.

Re:Even Simpler

[FlyingBishop]

Not at the border. There's a ton of language in sections 7,8, and 9 of article I that makes it pretty clear that dealing with foreigners is the domain of Congress.

Re:Border crossing and the fourth

[plague3106]

If you're going to suggest stuff like this, at least be accurate. In many cases HIV can be detected within two to eight weeks, although in some cases it can be up to three months. Testing for HIV has advanced.

Re:Border crossing and the fourth

[bberens]

It's the same as the rest of the searches at the airports, security theater.

Re:Border crossing and the fourth

[joeyblades]

If I wanted to smuggle/hide information and I was paranoid about the security of electronic transfer, my humongous laptop is NOT where I would keep it. I would choose something more the size of my pinky fingernail...

With the advent of 32GB microSD flash, it's easy to move lots of data undetected... at least until they train flash sniffing dogs.

Re:Border crossing and the fourth

[Chris Mattern]

Aren't border crossings an exception to the Fourth Amendment, or rather, a circumstance where any search is considered "reasonable" by default?

Says who?

The Federal Ninth Ciruit Court of Appeals, apparently. The issue has not yet made it to the Supreme Court. http://en.wikipedia.org/wiki/Border_search_exception

Talk at Shmoocon

[tdc_vga]

IAAL and here's a presentation I gave at ShmooCon and DefCon last year entitled "They Took My Laptop! - 4th and 5th Amendment Explained." The Defcon video isn't available yet, unfortunately, since the content is more up to date. The video goes into a decent amount of depth on the current body of laws in regards to laptop seizures. Anyway, thought it might be of use.

Cheers,
T

Re:You don't have those rights at border crossings

[NFN_NLN]

(what's all that BS about?)

all I'm saying is that in the real world, your ideals and values mean NOTHING. when some gov official is raping your rights, you have NOTHING you can do about it.

nothing.

this is the powerless that we all feel as being part of the modern world.

nothing you can do about it, either. nothing.

sorry to break it to you but MANY things in this world are really really wrong and nothing you can do about it. your youthful ideals won't help you. just accept it. life has MANY things like this that you cannot fight or win.

do I like this? HELL NO. but I live in the real world.

You rephrased the fact that you feel there is NOTHING anyone can do 8 times over at least 2 posts. The irony is that you're commenting on an article where they are trying to do SOMETHING.

In fact, even you're doing something (it's just no positive). You're an enabler. You go around telling everyone there's nothing you can do so it's OK. At the very least just do society a favor and STFU.

Re:Border crossing and the fourth

[Sylver Dragon]

The Constitution puts limits on the actions of the government. Not 'the actions of the government within the borders of the admitted states.'

Just to nitpick, but it really is important because of the context. The Constitution does not place limits on the actions of the government. The US Constitution grants the government powers. The problem is that a number of people were worried that the government would work to grow those powers in an unbounded way and so they insisted on the Bill of Rights as an check on that behavior. The counter argument to the Bill of Rights was that it would eventually be turned around and used as an exhaustive list of the rights of the people and the limits of government power. The fact that many people today now believe that this is the case, and will state that "The Constitution puts limits on the actions of the government" shows that the detractors of the Bill of Rights were right. Technically, it was because of these fears that the Ninth and Tenth Amendments were added; however, FDR managed to murder the Ninth and the Tenth sort of withered away during the twentieth century.

Still, based on the (probably vain) hope that we might breath some life back into the Tenth, I tend to pick at this issue:
The US Constitution does not limit the power of US Government, it grants powers to the US Government. The US Government does not have any power not specifically granted to it by the US Constitution.

Re:Border crossing and the fourth

[ColaMan]

Just go back to the original definition of quarantine, that's long enough.

But as has been mentioned, checkpoints are 'technically outside US soil', so you could be attacked by pirates whilst at a checkpoint and have no redress. Which seems to be pretty much what is actually happening.

Re:Border crossing and the fourth

[shutdown -p now]

I didn't intend to make a 14th Amendment argument, rather the antecedent of the people is usually considered to be The People, from the introduction.

It may be so, but the U.S. courts have interpreted "people" more extensively in the past - for example, "the right of the people to keep and bear Arms, shall not be infringed" was considered by a Washington State court to be sufficient reason to strike down a state law prohibiting gun ownership by aliens as non-constitutional - the state is allowed to discriminate by e.g. instituting licenses for non-citizens where citizens wouldn't need one, but cannot deny the right altogether.

Similarly, in many U.S. states in the past, non-citizens could vote in local elections after residing in the state for a certain period of time (e.g. a year).