Slashdot Mirror
US Federal Judge Rules Suspicionless Border Searches of Laptops Constitutional
AHuxley writes "The American Civil Liberties Union sought to challenge the U.S. legal 'border exemption' three years ago. Can your laptop be seized and searched without reasonable suspicion at the border? A 32 page decision provides new legal insight into legal thinking around suspicionless searches: your electronic devices are searchable and seizable for any reason at the U.S. border. The ACLU may appeal. Also note the Kool-Aid comment: 'The report said that a reasonable suspicion standard is inadvisable because it could lead to litigation and the forced divulgence of national security information, and would prevent border officers from acting on inchoate "hunches," a method that it says has sometimes proved fruitful.'"
It's even legal for them to copy the contents of your laptop for no reason at all, just in case they need to take a peek later. A bit of context from the ACLU: "The lawsuit was filed on behalf of Pascal Abidor, a dual French-American citizen who had his laptop searched and confiscated at the Canadian border ... Abidor was travelling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by customs officers. Abidor, an Islamic Studies Ph.D. student at McGill University, was questioned, taken off the train in handcuffs, and held in a cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files had been searched, including photos and chats with his girlfriend."
...i'm not American.
At the end of the novel Catch-22 the famous rule starts to have other formulations including 'they have the right to do to us anything we can't stop them from doing.'
Does anyone think this won't be abused?
---- The above post was generated by the Turing Institute. Maybe.
Every time I read about a new attack on the Bill of Rights, I write to my Congressional representation. I also vote to replace my representation since clearly they aren't representing We, the People.
I'm getting tired of writing these letters, yet I'll do it again and remind my "representation" of my position. Anybody else?
Government's idea of a balanced budget: take money from the right pocket to balance...oh who am I kidding?
... anything else would be "inadvisable"?
How implausible is it to imagine that a system could be set up to suck all data off every device (especially solid state storage) as it passes through airport security?
Since it's legal, why wouldn't the government want to do it? Ya know. Just in case. To protect us.
What is so special about the US border that makes it an exception to the 4th Amendment?
Encrypting your hard drive's contents may not be such a good idea... If they decide to search your laptop (or any other device) and it's encrypted, they'll certainly ask you to provide the password. If you don't provide the password, expect being detained for as long as the law allows them to hold you. Also, if you're a foreign national, you'll probably be denied entry.
Stick a copyright notice on your laptop.
"The contents of this laptop are copyrighted. Licensed for use by owner only."
Then sue them.
If I have a briefcase full of papers at the border can that be searched without warrant or suspicion?
Unless you have a diplomatic passport, then yes, your briefcase can be searched at the border for any reason or for no reason.
Yes it can be searched.
The search standards at border crossings are very loose. It's been that way since 1789. The Constitution is high on defense of the nation, and tariffs were the first taxes. Obviously you cannot defend the borders or impose tariffs without being able to search at border crossings.
The Congress shall have power:
To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
"Exhibit A in the Supreme Courtâ(TM)s case for border searches is a statute Congress enacted in 1789, which granted customs officials âoefull power and authorityâ to search âoeany ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed"
from: http://lawreview.richmond.edu/run-for-the-border/
This statute actually PREDATES the adoption of the Bill of Rights as amendments to the Constitution by two months.
Encrypting your hard drive's contents may not be such a good idea... If they decide to search your laptop (or any other device) and it's encrypted, they'll certainly ask you to provide the password. If you don't provide the password, expect being detained for as long as the law allows them to hold you. Also, if you're a foreign national, you'll probably be denied entry.
Don't encrypt the laptop.
Take a backup of the laptop hard drive, encrypt the backup. Upload that to an online storage service.
Wipe the free space or get a new hard drive. Install basic operating system. Take THAT through customs with you.
For 'extra points' create an online email account and populate it with some plausible emails, copy over some plausible photos, documents etc.
Once at your destination, download your encrypted backup and restore it onto your hard drive.
In the free world the media isn't government run; the government is media run.
Does it matter? Barack Obama is president, and this shit is still going on. We were royally duped by the democratic party. No wonder his approval polls are in the shitter now. Time to overthrow this republicrat juggernaut and elect real representatives, not these security paranoid corporate douchebags.
Constitutional or not, I wouldn't risk it anyway. Please note, I'm an IT Manager - I have nothing to hide - but the machines I use contain information on how to access other machines at my workplace. Providing access to the data on those machines, sited in the UK, is considered a breach of the Data Protection Act in the UK as they hold personal information. It's even a bit more serious than that, as I work for schools.
As such, case law prevents me even revealing those passwords to anyone without just cause or a court order. The penalties apply to ME, not just my employer. There are even cases where even the POTENTIAL to access the data (i.e. giving someone the password, even if they can't use it without being on the right system, etc.) is considered no different to direct and provable access to the data.
My previous employer prevented staff taking data to France because they have a similar law, but it wasn't anywhere near as serious a threat to our ability to control the data under our protection.
So, sorry, I can't take any electronic equipment holding that information into the US whatsoever. Others may interpret the situation differently, but I'm afraid the only interpretation that matters to me are the courts', and they have spoken many times on such matters and fined people heavily for doing so. I'm sure I could "get away" with it a billion times if I tried, but that's not how I conduct my professional or personal life.
As such, I wouldn't even bother to take a computer across the border in America. And given recent revelations, I don't think it wise to just take some hidden / memorised access credentials to the US and then use them when I'm then to - e.g. set up a blank / hired laptop.
Honestly, this is something I factored in when I was considering emigration many years ago. America pretty much ended up a no-go for me because of the attitude towards foreigners, and their casual approach to data, and their failure to sign many of the same agreements that all EU countries signed up to with regards data usage.
I wouldn't even bother to go there on holiday again - did it once, but now I wouldn't be able to take my laptop or my smartphone with good conscious as both contain encryption and access credentials that although if law-enforcement NEEDED them, I would provide, I do NOT expect law-enforcement to store it longer than necessary, duplicate it, or fail to provide assurances on the security of that data while it's in their possession. That's all you need to do - not even stop collecting the data, just tell me what you can and won't do with it so that I can take that piece of paper to a court (if it ever comes up) and say "Look, here's the assurance I was given when requested to hand over data by law enforcement - not my fault the data got into the wild" - even then, the case law says I'll still get fined but I think I have more of a chance of having the case swing my way under "reasonable efforts" to protect that data.
When you take my phone and laptop away, that cripples my ability to store my documentation (even my flight tickets), research my destinations, book hotels, navigate to places, etc. and I see it as unnecessary. So, basically, even as a place for a quick holiday, it's out of bounds.
And although the places I work for aren't the poorest, they aren't the richest either - so faffing about with blanked laptops is just too much shit to put up with.
Sorry, US. When you treat me like a prisoner, or an alien, with zero human rights, I don't want to be near you - like the bully in the playground. Have fun playing on your own.
All for the sake of a proper receipt, with some assurances that you won't just splurge my (and my employer's) private data onto the net the second I walk out the door...
Sad, isn't it? We live under far worse tyranny today than we did under King George III.
I don't take notebooks I care much about when travelling so I've no concern if they get banged about or stolen. It's so easy to wipe and reinstall before travel that one should do that if you don't want your goat porn viewed by the Stasi.
I'm not worried about Uncle Sugar reading anything I have because I don't do anything interesting to the State and if I did I'm not stupid enough to want to use a computer for it. AT ALL.
If for some reason I had to carry vital legal-but-proprietary commercial information it takes little effort (well, on Thinkpads anyway) to stash a MicroSD card temporarily glued under the label of a WLAN card or a section of heatsink. Don't bring a screwdriver with you as they are cheap at chain stores.
"This post is an artistic work of fiction and falsehood. Only a fool would take anything posted here as fact."
...and if you encrypt your hard disk you must be a terrorist
I'm pretty big on civil liberties, and stories like this don't exactly make me comfortable, but at the end of the day the border guys have a tough job. Hundreds of thousands of people entering the country, they get a minute or two to decide if something is amiss. Should they have unlimited powers? No. However, I think there's a case to be made that if you want to enter a country you are not entitled to due-process in it's entirety. In terms of it being a fourth amendment issue ... I'm not sure it's unreasonable to be searched when entering a country ... it seems pretty standard across the world. Electronics make it feel far move invasive, sure, but the base concept of being able to search people entering the country seems pretty sound.
This kind of opinion is precisely why we continue to see the erosion of our rights in the US.
Suspending constitutional rights because "their job is hard" is bullshit. The border agents can suck it up and do their jobs the right way. If that means I have an order of magnitude higher chance of dying from a terrorist attack, so be it - it would still be multiple orders of magnitude lower chance than dying of many other things like cancer, heart disease, or car accidents.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
If you want to be safe from unreasonable searches of your personal data while crossing borders, keep no data (none!) on your computer when you cross borders. Anything you need, keep somewhere where you can download it using a memorized password once you're in a place where you feel you have some reason to assume you won't be searched again. When you need to re-cross the border, erase the data again. Don't even keep passwords on your computer. If there's no data on your computer, then they won't be in a position to ask you for your password.
Of course, the police can always stop you, and the border patrol can always demand to search your computer if they stop you within 100 miles of the border (claims the administration) so you're still not out of the woods once you're on the other side of the border, but unless they are specifically targeting you, you're unlikely to be further searched. Realistically, if they aren't targeting you they aren't going to search your devices when you cross the border either, but you never know.
Probably the most important takeaway from this story is that if you are doing anything related to Islam or the study of Islam, you should not advertise that in any way that can be found by googling you. By restraining your freedom of speech voluntarily, you can avoid being punished for thoughtcrime.
In a comment for another thread, I described US practices to be similar to North Korea and Iran ones.
...
It is a shame, because I know a lot of US citizen and they are wonderful people, but each day I hear things that make my suspicion to be real. Just see the facts.
1) In many US based online places, when you are not an US citizen having an US legal address, you can't purchase anything using a valid international credit card.
2) If you try to store any type of data in US servers, the US authorities can, legally, ask for the information you stored there. Take into consideration that even the US citizen are involved in this "natural" seizing of data, because what is "third party" generated data in the modern information world?
3) If you try to enter the United States with any type of computing device, the authorities have the right to seize it and you need to provide them with passwords, and they can copy your data and to do whatever they like with it.
As they already have legal rights to do whatever they like with your digital data, the next step is to confiscate your paper notebooks. Because they could have any type of security related information. If you carry "YOUR" written poems, then they will ask you to give them the clue to acquire the hidden data, because for them it is clear that you are the enemy and that nobody enter the United States with good intentions. Why then they don't close all the airports, harbours, etc.?
I live in Costa Rica. Our laws are very different than the US laws. In the wikileaks data about the relationship between US and Costa Rica, something was said about that Costa Rica had a "dysfunctional" government, because here everything needs to pass through a very lengthly legal process. But now I understand what dysfunctional really means.
Dysfunctional means that they can't pass on top of their citizen minds without asking for permission. So, the authorities have the right to do whatever they like to do, without any type of control and then they are functional authorities. But when you keep their hands out of the personal privacy, you are the bad guy.
What a shame
I voted against McCain/Palin, not for Obama. It sucks that we can't get a president who's trustworthy, but it's pointless to cry over spilt milk. The presidential election is too high profile and expensive, and there are too many people with too many differing viewpoints, so we are always going to get someone who's less objectionable, not someone we really want. The place to focus your efforts is in primary races for representatives and senators, and of course in the general election for these folks. The tea party has used this very effectively in the past, and the progressives are starting to do it too.
Another important place to focus your efforts is on local races, both statewide and city (or town). Statewide races matter because both parties have shown a willingness to gerrymander; if we want fair elections, we should be electing statewide representatives who are in favor of preventing gerrymandering and willing to work to make that happen. And local races are what feed statewide races.
The idea that what matters is the presidential election is so backward that it's horrifying to watch it every four years. If you want to bow out of an election, bow out of the presidential election and vote in the mid-term elections, rather than vice versa. But better to vote in every election.
Don't encrypt the laptop.
Take a backup of the laptop hard drive, encrypt the backup. Upload that to an online storage service.
Wipe the free space or get a new hard drive.
Do you really actually do all that? Or is this just some weird thought experiment of yours?
First we need leadership. We all saw how incredibly effective the directionless "Occupy" movement was. About the only thing it accomplished was demonstrating that the government is still willing to use police brutality against peaceful demonstrators, and the media managed to mostly conveniently overlook that aspect.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Well here's at least one reason this is happening. Essentially when confronted with a question of the form "should we permit X to do Y upon Z in order to keep us safe ?" the individual answering that question effectively considers whether or not they'll ever be Z. No federal judge is ever going to be stopped at an airport . No federal judge is ever going to have his laptop searched at the border. In fact none of the rulings federal judges make will ever apply to them personally or anyone with the power to pick up a phone and call that judge to complain that X is about to do Y to them.
Essentially the way judges hear the proposition is: "would you like us to increase security for you, sir?" They know if for some ungodly oversight they were ever actually asked to turn over their laptop to a customs agent, one phone call and it all goes away before the agent can boot their Windows 8 (this is who's buying that dog btw ) installation and that agent would soon be manning the un-airconditioned , 3x5 border booth in 105 degree heat watching over some dirt road in Tumbleweed Town, Texas.
So get real. You're asking people To Whom Nothing Adverse Is Permitted To Happen if they would like ditch the Constitution within 100 miles of any border so that he and his can feel in some nighty-night, all-tucked-in way "safer".
I am sure the nation's judicial benches are deep with such people. I am sure that people capable of considering the effects of their decisions on a nation and on its people are few and far between. Last week's judge was citing as supporting evidence the 9-11 commission report even though the 9-11 commission report said, substantively, exactly the opposite of what he claimed in his judgement it said.
http://www.techdirt.com/articles/20131230/11062925713/judge-who-ruled-favor-nsa-relied-911-report-that-doesnt-even-mention-what-he-claims-it-does.shtml
This is what is populating our benches. How bad is it? We're about to find out. .
If you find that your residence, automobile, or other personal effects have been entered/searched without your consent or direct knowledge, and everything "looks intact", consider that they didn't come to take something away, but to put something in.
Once your personal effects, especially high-capacity electronics like smartphones and laptops, are out of your direct control, in some other room for hours at a time while you're in a holding cell, you can no longer trust them.
If they can get access to the physical hardware, they can install malware, rootkits, key loggers, replace the network card with one that is known-trojaned, manipulate your certificates, trusts, replace firmware on your devices and anything else they want.
No, once you get your gear back, immediately wipe it. Do not log into it, not even once, and just sell it on eBay or Craigslist.
You can't trust it, so dump it as soon as you can.