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

[hellfish006]

why should any search be "reasonable" at a border? Maybe to help cut back on the spread of diseases we should have a holding bay at each border and run blood tests. We could deem them biological weapons until proven otherwise!

Re:Border crossing and the fourth

[Dunbal]

we should have a holding bay at each border and run blood tests

      Remember that some tests, like those for HIV, can take up till 6 months before the chance of false negatives are eliminated. I therefore suggest a period of quarantine in an isolated cell for at least 6 months for all travelers.

Re:Border crossing and the fourth

[Golddess]

Considering the ease with which you can send information without having it physically stored on the laptop, any search that goes beyond determining that the device is, in fact, just a laptop is just a waste of taxpayer money.

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

[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".

Re:Border crossing and the fourth

[bill_mcgonigle]

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

I don't see that in the plain and clear text of the Fourth Amendment restrictions.

Citizens rights are not to be abridged, full stop.

Re:Border crossing and the fourth

[Opportunist]

It is impossible to stop the transfer of a key past border security. After all, you can retry as many times as you like, all you have to get through is a single key. Not to mention that you could simply publish the public part of a PGP pair.

I still didn't figure out what the search is about. I only know that it's not about terrorism.

Re:Border crossing and the fourth

[IndustrialComplex]

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

Says who? No really, consider the source of that claim.

Just because the government says something, or even when the government DOES something, that doesn't mean what they say or do is Constitutional.

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: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

Re:Border crossing and the fourth

[bill_mcgonigle]

Don't let the lawyer thing get in your way - the US Constitution is meant to be read and understood by average citizens. Any interpretation that requires judicial contrivances is bound to be wrong.

The US Government, as constituted since the 1960's has claimed that the 4th Amendment does not apply in many circumstances. That in no way affects the original meaning, only the validity of the current government.

For instance, it claims that government agents are authorized to stick their (perhaps gloved) hand up your ass if they have "reasonable suspicion" but no warrant.
You wouldn't want to get between Aaron Burr and such a bureaucrat.

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

[Obfuscant]

It's too bad they used the word "unreasonable" rather than "unwarranted".

Well, that's one opinion. Mine differs. They used the correct word, I believe.

However, the implication seems to be that they can't search without a warrant:

No, the implication is that they can't make unreasonable searches, because they did choose to use the word "unreasonable" instead of "unwarranted".

The visual search the cop makes of a car as he approaches a roadside stop is perfectly reasonable but there is no warrant, and it is ridiculous to think that a warrant should be required. The pat-down he uses to check for weapons is just as reasonable although arguably so.

That doesn't sound to me like border searches are legal, but I'm a nerd, not a lawyer.

That's why you should use the same word the founders did ("unreasonable") and not replace it with a different one.

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. The fact that a lot of the illegality is import related makes it hard to argue that searches at the point where import takes place is unreasonable. And, of course, once you get caught in one lie or raise suspicion, the "unreasonable" argument goes away.

That said, since the intent of the search of laptops is to find illegal "information", and that possession and not import is usually the crime, it can be argued that searching laptops is unreasonable. Further, since the search involves confiscating the object, it's even easier to argue unreasonableness. To use a car analogy, if the visual search of your vehicle at a traffic stop required towing the vehicle to the impound lot so a professional could look at it, it would be clear that the visual search would be unreasonable.

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

[LrdDimwit]

Clear and plain? Not at all, given that the amendment uses the word "unreasonable" without providing any definition whatsoever as to what precisely is, or isn't, reasonable. The people are only protected against "unreasonable" searches without warrant. And before you say "no warrantless search is ever reasonable" consider the case of an on-duty cop who personally witnesses a crime in progress where every second counts (say, someone breaking into a house with a sledgehammer, or throwing a gagged child into the back of a van).

Given that clearly some searches are reasonable, even without a warrant, it isn't a question of "if" warrantless searches are ever OK, but "when" they are. And the Supreme Court has said, basically, that keeping contraband out of the country is enough of a good reason that warrantless border searches are "reasonable". You can disagree with the particular result, but this is not at all a black and white issue.

I continue to be amazed at how terms that only appear on the surface to be unambiguous and perfectly clear, actually hide seriously thorny issues of interpretation. If you've ever worked from a requirements document and tried to implement something that seems to be clear, until you start coding, it's basically the same thing.

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).

Re:Border crossing and the fourth

[shutdown -p now]

Nonetheless, the WA court had specifically singled out "people" in the text of the Second Amendment, and based its judgment on that alone, not on whether it is a natural right or not. I think it would be reasonable to assume that the same court, at least, would then consider the word "people" to have the same meaning in the context of the Fourth Amendment, if it was ever asked to rule on it.

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.

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

[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:Policy document

[ElSupreme]

Just because he *probably* wont remember. And *probably* won't do anything about it. And it *probably* won't be a violation of your rights. DON'T MEAN YOU SHOULD BE COMPLACENT!

It can be all three, and if you let it be that way for a while you won't be able to say anything when those things start happening.

Re:Policy document

[IndustrialComplex]

The officer searching you probably searches thousands of people a day. It's not like he's going to go through your data files and memorize all the important business/legal documents and then report them to your competitors. The policy document indicates that all electronic searches take place in your presence and with a supervisor present.

Allow me to introduce you to the basis for the majority of my privacy opinions: "Lack of feasibility to infringe on a large scale does not make the initial power just."

Or in simple terms: "Just because they can't now, doesn't mean they won't later."

What you have is a herd mentality that follows the same logic as, "That wolf can't eat all the sheep". If I give ONE person in the country the authority to execute unwarranted searches at their whim, simply because they cannot search EVERYONE does not make the authority I granted just.

ALWAYS consider the way in which a power may be abused, because eventually, it will be.

Thirty years ago if you suggested that the government could monitor and process all of the phone conversations in the United States simultaneously it wouldn't have been possible. However, with conversations being digitized and the development of new technology, it is becoming possible, and in 20-30 years? Just because they can't now, doesn't mean they won't later.

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:You don't have those rights at border crossings

[QuoteMstr]

How many other exceptions do you plan to make?

Oh! that. I thought the laptops have become obese

[140Mandak262Jamuna]

I read Challenge To US Government Over Seized Laptops as Challenge To US Government Over Sized Laptops and imagined laptops with 32 inch screens getting stuck at the XRay machines!

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.

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

[cbhacking]

No, but you've entirely missed the point. The idea here is that lawyers represent a group of individuals who routinely carry sensitive data and stand to take substantial financial harm if it is seized ("without good reason" being implied here). As an added bonus, lawyers typically have money to fight things like this.

Basically, lawyers have a lot to lose if unreasonable laptop seizures continue, and they have the resources to fight it. There's no implication that they would try to get an exception for lawyers specifically, which seems to be what you thought the GP was talking about; rather the point is that the ACLU needs people who will fight this case for the sake of everybody, and lawyers can do that.

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

[Darth Sdlavrot]

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.

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:You don't have those rights at border crossings

[Darth Sdlavrot]

Do you honestly expect us to believe that you don't have backup copies of your work on a USB drive or on a file server somewhere where you could download it, should such a need arise?

Sure, it'd be an expensive nuisance to replace it if your laptop is one of the microscopically small percentage that are seized; but if that's where the only copy of your life's work resides, then you're a fool in more ways than one.

Policies and the like

[Shivetya]

Wasn't that the result of a "so and so bill of rights" which is the favored naming of new rules passed by Congress which only seem to allow government agencies to abuse me? I mean, it seems each time I get a new Bill of Rights I spend more time under the thumb of some government or business.

I guess I can now plan around such outrages, knowing how long I will be without needed personal or business data, how long I will be required to sit in an office/detention/airplane/etc.

I wish they would quit codifying my rights and obey the ones that were supposed to be inalienable from the get-go

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...

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

[TheGratefulNet]

They aren't suspended just because I'm at a border crossing.

they are. and they are in EVERY country. they all 'like' this. they will not give this 'rule' back.

sorry to inform you but the world IS run by a bunch of power hungry sick-os. aka, politicians. they DO think like this. no, they are not tech/scientists like we are. they don't think like us. they use anti-logic when making laws.

sucks, huh?

welcome to the non-disney real world. watch your step.

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.

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

[91degrees]

But if nobody is going to prevent the government agents from violating the constitution, then it doesn't make much difference what the thing says.

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:The government *does* have the right !!

[thue]

So if the US government were to kill a US citizen outside the US, the US government would not be liable in a US court? Of course it would be illegal!

Same with unreasonable searches and seizures at border crosses.

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

[donaggie03]

Obviously, if you leave one country, but haven't entered the next country, you are in the Borderlands. We should all enter the Borderlands and set up a government there. You know, that 100 sq ft area considered "not past customs". But wait . . if we try to do something like that, the other governments would say that it is their land, and they have jurisdiction there . .. so that land really is part of that government . . . so the constitution should apply . . .

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

[polle404]

well, if I'm not _in_ the US, then US Customs, TSA etc. does not have jurisdiction, and are thusly not permitted to conduct any searches?
But, on the other hand, if they _do_ have the jurisdiction to conduct a search, then I must be on US soil?

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

[QuoteMstr]

Don't confuse is and ought.

Are you suggesting that we merely resign ourselves to that fact borders are rights-free zones, even if that's not the way the world ought to work? In that case, you're a coward.

Or are you suggesting that our rights ought not to apply at the border for some a priori reason? Can that reason distinguish between rights at borders and rights inside a country? Or better searches and arbitrary detentions? The kind of reasoning that leads someone to believe arbitrary searches are acceptable inevitably leads him down the path to endorsing a nightmare police state.

If that's you, then you're an enemy of modern civilization.

So which is it?

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

[TheRaven64]

The US Government is constrained by the Constitution.

The US Government, like any other government, is constrained by what its citizens are willing to allow it to do and what they are able to prevent it from doing. The constitution is a document detailing what the founders of the country thought the citizens ought to permit the government to do. The will of the citizens can be expressed through elections, through the courts, and through passive or violent rebellion. The first two options are not available in a large proportion of the world, and it is important to use them actively and responsibly in the parts, such as the USA, where they are.

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

[TheRaven64]

Absolutely, and even without the the risk of confiscation, flying is one of the times when a laptop is most likely to be lost or damaged. Run a backup before you leave, run an rsync (or whatever) update before you go back.

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

[TheGratefulNet]

(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.

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.

Let me answer that for you.

[khallow]

Given that, is it worth the sacrifice to human rights to keep doing it?

NO. My view is that unless the law enforcement officer has a reasonable expectation that some criminal activity is going on, they shouldn't have the ability to seize data or search laptops. This includes customs agents.

Consider the arguments a little closer

[selil]

I think it is funny that people say "you don't have those rights at border crossings", and yet that isn't even the government contention. The government believes that laptops and other electronic devices are open containers that can be examined at will after they've been seen. In other words if this stands as a principle and you're walking down the street and they can see your iPod they (meaning police) can seize and examine the iPod. This is a principle of incremental legislation and enforcement. Case studies of similar expansions are found in seat belt laws, and punishment for driving under the influence. As to people saying you don't have the rights accorded to the Constitution when crossing borders they are completely wrong. Administrations have held that point of view. They have also held that your rights (and responsibilities) apply wherever you are found. So, you have those rights, but can be charged for crimes from the United States even when where you are the incident is not illegal (e.g. child porn, gambling, etc..).

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

[donaggie03]

(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.

Maybe we could, I don't know, sue the border agents and the executive branch of our government, so that MAYBE the judicial branch will strike down these acts, or at least limit them, as unconstitutional and give us some case law on the matter. You know, kinda exactly like what the ACLU is trying to do here.

Nah, that's just too hard! We should all just resign ourselves to accept the inalienable and indisputable fact that the federal government is in absolute control and there is nothing we can ever do. That definitely sounds better. /sarcasm

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

[donaggie03]

The government has the authority to do many things in a legal manner. No one is arguing that. No one is even arguing against searches and seizures at the border. The argument is against the illegal searches and seizures (no probable cause, etc) that is occurring.

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

[QuoteMstr]

As George Bernard Shaw famously and pithily put it:

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.

Back in the days of DOS, Penn Jillette...

[RevWaldo]

Back in the days of DOS, Penn Jillette (of Penn and Teller fame) used to write a computer column. Basically back then all airport security would ask you to do is turn your laptop on, just to confirm that it is a working laptop, and not, say, a laptop packed with C4 where the battery and hard drive should be.

He suggested that when traveling you should NOT, DEFINITEY NOT put the following in your laptop's AUTOEXEC.BAT file:

ECHO READY
ECHO ARMING....
ECHO ARMED
ECHO *** DETONATION IN 00:30 ***
ECHO Press 'x' to abort.
CHOICE /C:x /T:x,30 > NUL
ECHO GOODBYE

Re:Back in the days of DOS, Penn Jillette...

[Rockoon]

Remove the 'Press x to abort' part and it seems to me that after they see this... after they all run away... you can pick your laptop up and walk away.

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

[Anonymous Coward]

I'm glad our founders weren't as defeatest as you.

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:You don't have those rights at border crossings

[Proteus Child]

There is a minor point being missed here: what's stopping them from misusing the data they find on confiscated laptops and storage media? What prevents them from using seized information from filling out their social network maps for "people of interest" (for some definition of 'interest') or finding new people to keep a close eye on? Also, because an unknown volume of the stuff they confiscate and never return winds up sold off in lots on eBay (remember the huge lots of pocket knives, cuticle scissors, knitting stuff, and other bric-a-brac from a couple of years ago), what is to stop people from buying lots of (say) confiscated USB keys and external drives and rifling through them for usable or saleable information?

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

[david_thornley]

The Fourth Amendment does say "unreasonable". The US Congress has decided that border searches are reasonable, and the US Supreme Court has (IIRC) agreed with that. There's a bit of a loophole in the Fourth. It lays down certain criteria for a warrant, but doesn't say a search needs a warrant. The US government is free to define criteria for reasonableness; for example, a law enforcement officer may under some circumstances search an area to see if there's a weapon that a given person might be able to reach.

The only Constitutional question is what is reasonable or unreasonable.

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

[thePowerOfGrayskull]

Sure, it'd be an expensive nuisance to replace it if your laptop is one of the microscopically small percentage that are seized; but if that's where the only copy of your life's work resides, then you're a fool in more ways than one.

Where to begin with this...

First - the principle should make your entire "argument" moot. If his laptop was not seized unreasonably in the first place, then the rest of the discussion would be unnecessary. Your argument is based on the foundation that these seizures are acceptable to begin with, but you've provided nothing to support that assumption.

Second - one man's "expensive nuisance" is another man's livelihood. Even more so in this DRM'd age, when software is tied to specific machines -- on my development box I have over $10k in legitimate software that I require, but much of it can't be moved to another machine without major hassle - and some can't be moved at all.

Third: IP concerns. You have no idea what happens to the data on these machines. Government officials are people too. While I don't think the government as a whole is going to turn around and do something evil with my data, I have no such confidence in the individuals employed by the same government. There are also very real concerns about things like trade secret agreements (providing the data on my system to ANYONE would cost me a huge amount of money) and contractual obligations (clients don't want to hear that the government stole my laptop - so that would cost me money too).

Do you honestly expect us to believe that you don't have backup copies of your work on a USB drive or on a file server somewhere where you could download it, should such a need arise?

Well that just takes care of any possible problem associated with this behavior, doesn't it?

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

[Anonymous Coward]

The US Government, like any other government, is constrained by what its citizens are willing to allow it to do and what they are able to prevent it from doing.

That's really the essence of the situation. The piece of paper really is just a piece of paper if the people don't believe in it. If the people said (for real in voting booths, not just in internet blogs) they wanted border policies to change, then border policies would change.

But when you get right down to it, most of us don't cross the borders very often, so at the detail level, it's just not a big issue. And in the bigger picture, people don't vote for liberty in general. Liberty is way down the list, below ephemera such as

• We want other people to pay for things (e.g. health care, retirement, even energy)
• We don't want our politicians cheating on their wives, saying awkward or insensitive things when a mic is on, and we want them to wear a tie
• We want them to reassure us about things we're scared of

and so on. That stuff is way more important than the vague, distant idea behind the 4th amendment, and we assert so, every 2 years.

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:You don't have those rights at border crossings

[gknoy]

If you are going to a conference, consider bringing your data on DVD (multiple ones perhaps), and then mailing your computer to your hotel (and back). Insure it, whatever, but it's probably more likely to get there unmolested.

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

[Saxerman]

A lot of the idealists are going to give you shit for holding this position. They have their reasons, and some of them might even be good ones, but let's skip that for now. If you're a realist or a pragmatist, their idealism probably isn't going to do much for you. And I get where you're coming from. Here in the US, we have a large number of disenfranchised voters who feel exactly the same way as you. And the Powers That Be really like it that way, since less voters means less work buying elections.

On the plus side, votes do seem to count. If you look at the ridiculous amounts of money being spent in US politics on campaigns, that should be prime evidence of the power of the vote. The problem, of course, is in who holds that power. Voters cast their votes for a great many reasons, and some of those reasons have been fairly easy to subvert.

The cure for this problem is not simple, and it is not easy, and I don't blame you for not wanting to help. A great many good people will likely need to stand up and serve jail time and worse in acts of civil disobedience to try and change things. Getting people to stand up and take notice to what is going on around them, and not just passively tune out discussions of politics and social justice will be a major challenge by itself. Getting people to believe in change, and to believe in a better way of social governance, and actively participate in politics... that does seem pretty impossible. And if that dream were to ever come true, and we did 'fix' things, it would carry with it a good of different problems.

But I have some good news. It only feels like there is nothing you can do about it. The bad news is that there are powerful forces at work trying to make sure you always feel that way. Of course, it has pretty much always been up to you how you want to feel about that, and what you want to do about that. Rather than passively accepting that things suck and committing yourself to the belief that it will never change, even something simple like trying to engage people in discussions on political issues can help. The more minds like yours that we can even open to the possibility of change can only help.

Of course, change is not without risk, and getting your hopes up is a good way to see them dashed to pieces at your feet. But, you already know how it is. This is the real world.

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.