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

Border crossing and the fourth

[mangu]

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

Re:Border crossing and the fourth

[corbettw]

Historically, that's been true. But the reason for that is to prevent contraband from coming into the country. With the advent of the Internet, anyone can download anything from anywhere. So searching laptops at the border isn't going to have any effect, whatsoever, on the flow of contraband digital items (pirated software, kiddie porn, whatever). It might (and has) nabbed a few individuals, but it certainly hasn't had an appreciable effect on the wider practice of these things.

Given that, is it worth the sacrifice to human rights to keep doing it? That's the question that needs to be answer, IMNSHO.

Re:Border crossing and the fourth

[mcgrew]

The fact that so much truly illegal stuff is caught by border searches makes it hard to argue that searches conducted at the border are unreasonable

By that logic, the fact that so many people have illegal stuff in their homes (obviously, since residence searches usually turn something up) would allow them to walk into your house for a look around any time they wanted to.

And, of course, once you... raise suspicion, the "unreasonable" argument goes away.

That argument sounds completely unreasonable to me. It says that if the cop thinks there is something illegal in your house has free reign. No warrant needed, only a cop's suspicion.

As to car searches, if you park your car in front of the wrong house they'll search you and the vehicle. It happened to me a couple of years ago; they were looking for drugs (there were no drugs).

The "war on drugs" has eroded our right greatly, I fear the war on terrorism will be even worse.

Attorney Client Privilege

[dreamchaser]

I would imagine that any search of a lawyer's laptop could potentially violate attorney-client privilege. That may be one reason why they are looking for lawyers as plaintiffs. If the searches are voided on attorney's for any reason then the equal protection clause might take effect and void them for others as well.

I'm just randomly speculating and no IANAL.

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

[Rakshasa Taisab]

So I'm going to the US for a IT related conference by invitation. Obviously having your laptop with you is 'mandatory', yet can I really afford the risk of losing an expensive computer that pretty much is the center piece of my thesis studies and various programming related activities?

More importantly, how does the US expect to keep its technological lead when visitors have these kinds of worries just entering the country?

Re:Policy document

[SirGeek]

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.

I do think that this would apply and most people are not aware of it either:

Mincey v. Arizona, 437 U.S. 385 (1978). states:

Any search without a warrant is presumed unreasonable.

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

[Opportunist]

Here's an interesting one for you: I work in IT forensics and malware research. Thus I tend to have a few exploits on my laptop, very alive and ready to strike. Especially when I go to a convention in the US and plan to use them for a speech. Many of those things are POCs that can by their very nature not be detected by any common anti malware program, because they exist exactly once, on my laptop.

How high would you estimate the chance that...

1) Some dufus border cop has nothing better to do than to start one of those babies outside a sandbox?
2) Or execute them while attaching the laptop to a government network?
3) Or copying it, handing it to whoever handles forensics for them and him executing it on a network?
4) Me getting blamed for the ensuing damage?

There is a very good reason I encrypt everything on my laptop every time I have to travel to the US. So far I have been lucky and was never asked to decrypt it...

They should improve the system

[jonwil]

There are a few simple ways they can improve the system (and answer some of the criticism) without compromising national security one bit.

The easiest step they could take would be that anytime they take an item, they have to give you a receipt for it. A simple bit of paper that lists all the items they are taking, doesn't need to say why, just that it was taken by customs and which agent took it and the date and time it was taken.

The government *does* have the right !!

[bradley13]

The 4th amendment does not apply. As with every other country, the US considers domestic law to only apply when you are inside the country. If you have not yet cleared customs, you are technically not in the country. Therefore, you do not benefit from the protections of domestic law. This may seem like quibbling, but it is how every country controls its borders.

It is not only laptops: many people have also been required to show the photos on their cameras, as well as the contents of other electronic devices.

Whether or not such searches make any sense is another question altogether.

Re:The government *does* have the right !!

[OzoneLad]

The 4th amendment does not apply. As with every other country, the US considers domestic law to only apply when you are inside the country. If you have not yet cleared customs, you are technically not in the country. Therefore, you do not benefit from the protections of domestic law. This may seem like quibbling, but it is how every country controls its borders.

Are you then protected by the domestic laws of the country you're leaving, or have you entered some sort of fairy tale (the bad ones with blood and nightmares) limbo place where you have no rights whatsoever? I wonder what other rights they can ignore under the pretext that you're "not in the country yet".

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

[Anonymous Coward]

WTF? Governments don't have rights.

What you are thinking of is "government has a duty to protect its citizens", and this duty is all too easily perverted into "government has a right to exert control over its citizens", not even mentioning the xenophobic mentality "everything alien is presumed hostile until proven otherwise".

I cringe every time someone suggests that any form of government control or freedom impediment is "logical", or even "natural". Every government interference is just that, interference. Many of them are acceptable, some are even desirable. But none are "natural", and even less are "the only option".

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

[Scrameustache]

The US Government is constrained by the Constitution.

The 4th Amendment to the US Constitution doesn't say "...except at border crossings."

If you want to argue that a search at the border might not be unreasonable, that's a different argument, but per se, the US Government does not have any special right to conduct searches at the border.

My rights, as a US Citizen, WRT the US Government, extend around the world. They aren't suspended just because I'm at a border crossing.

IANAL, obviously.

More precisely, the 4th amendment states the rights of the people, not only of citizens. In some places rights are defined for people (such as the right to a fair trial), and in others for citizens only (such as voting, becoming president, etc.)

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

[MartinSchou]

Could be interesting to see a map with each of those airports pinned and a 100 mile circle around it. Just to see if any place is left out.

Re:Even Simpler

[aztracker1]

What about U.S. citizens at the border. What about a Lawyer's or Doctor's rights (or at least the rights of their clients/patients) under confidentiality laws?

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

[Daengbo]

What if you're 40 miles (64km) inside the country and stopped at a "border checkpoint," despite never having left the country?

Re:Use Anti-Search Wallpaper!

[rantingkitten]

What I want is something that comes up and looks like a Windows bluescreen and only allows you access after typing a password (no prompt) within a specific period of time. I'm sure that could be done with some cleverness to the grub menu, but I'm not clever enough to do it.

That way, some clown wants to inspect your laptop, you can say "Well, the stupid thing's broken, but sure, here you go." Agent boots the machine and as far as he can tell, he gets the usual Windows bluescreen. I can't imagine anyone caring enough about your crashy computer to bother investigating further. Idly whine a little bit (don't go overboard) about how you don't know how you're going to get your TPS reports back and you sure hope your computer genius neighbor can fix it for added effect.

Hell, most of them have probably had to go through something similar and know how annoying it is when Windows screws up, so you might even get some sympathy.