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

[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.

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

[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

[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.

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: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: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.

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.

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 !!

[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: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

[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

[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: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: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

[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.