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."

Comments

Thank fucking Christ...

[crutchy]

...i'm not American.

Re:Thank fucking Christ...

[john_uy]

That's the problem. All people entering the USA have no protection as accorded to American citizens. You are treated as hostile unless proven otherwise. In the meantime, all rights are suspended with no expectation of being treated as a human being.

Being a foreigner, I have read numerous times of horror stories happening at the immigration. It's really discouraging to go to the USA even if you have all the best intentions to go there. Good thing I don't have any necessity to go there at this point in time.

At the end, I'm not sure it is helping thwart bad people from entering the USA.

Re:Thank fucking Christ...

[demachina]

This is a pretty flawed analogy when it comes to digitial information. There is nothing on a laptop or smartphone that can't be sent in and out of the U.S. on a digitial network and bypass border inspection entirely, especially if its encrypted.

If they want to do a physical inspection to insure there is no contraband in the device, preferably while the owner is watching, that's fine. Imaging the digital contents of the device, copying your contacts, email and phone history is pretty much invasion of privacy and targetted harassment.

There is also a high risk that while they have your devices they will install spying hardware or software so once you get your device back you can no longer trust it.

Many multinationals simply wont let travelers carry anything important across borders any more. Its safer to transfer it digitally over networks and have the traveler pick up their gear and data in country.

One thing I've realized of late is that everything the U.S. has been accusing China of doing, with self righteous indignation, the U.S. has been doing too, usually better and more zealously.

The U.S. and U.K. are pretty far down the road to becoming xenophobic, pariah states. Its an extremely unwise path to choose, especially if you want a healthy economy. Its reaching the point that anyone who has a choice will refrain from engaging with them in economic, academic and scientific endeavors. If you are well educated, skilled entrepenuer or acadamic you would have to be a little nuts to want to work or study in the U.S. or U.K. these days.

Its sad that the U.S. and U.K. have self inflicted more damage on themeselves and their citizens than terrorist attacks could ever have dreamed. That is the whole idea behind terrorism, the reaction and countermeasures are usually more damaging to the target than the actual attacks.

Re:Thank fucking Christ...

[LVSlushdat]

Yeah.. I picture it like this.. America got kicked in the shins by a punk on 9/11/01, but since then she's shot herself in both feet, come close to severing both hands, given herself a good concussion,stabbed herself in several places, and put herself on lifesupport. That punk on 9/11 could not have done as much damage to America as she's done to herself in the 12 years since 9/11. DOES ANYONE DOUBT AMERICA IS NOW ESSENTIALLY A POLICE STATE?? (sorry about the caps, but wanted to emphasize that.. There is absolutely NO doubt in my mind..). I once was a republican, but after about 1/2 of BushJrs second term, I'd had enough and reregistered as Independent. It was a good move on my part after seeing how the republican party is trying (abeit unsuccessfully) to destroy the Teaparty, which is precisely what the republican party *should* be.. Nowadays, the (R)'s are just (D)-lite... Makes this 63 year old America VERY sick to his stomach...

Re:Thank fucking Christ...

[Anonymous Coward]

Also see ACLU : Constitution Free Zone and watch this

Re:Thank fucking Christ...

[demachina]

You seem to be a little naive my friend.

Common characteristics of a police state, wide spread spying on citizens, warrantless arrest and detention, torture, rigged judicial system and trials, execution of citizens without due process, suppression of a free press, suppression of opposition parties, censorship, seizure of property, targeting of opposition groups and minorities, prevent freedom of movement.

You do realize the U.S. and U.K. have engaged in all of these. I can run through examples of each if that will help enlighten you. The U.S. and U.K are not particularly iron fist police states, they prefer more the velvet gloved fist. They aren't particularly wide spread or oppressive police states yet, just give them time and a few more excuses.

It is no secret the U.S. has tortured people on a wide scale and very recently. This precedent has been set and the people who did it got away with it. Obama has dialed it back some, preferring to let third parties do it so he can claim the U.S. isn't torturing but the U.S. is still actively participating in and bankrolling it.

Obama has executed at least three American's by drone, which is the new prefered means of execution. Thre is no judicial process or if there was it is secret. One the the people killed was a 16 year old boy who apparently was targetted because he was the son of someone the U.S. hated.

Obama has been he most aggressive adminstration in targetting journalists in recent history, especially ones who are telling stories the U.S. doesn't want told. Obama had a journalist in Yemen jailed for 3 years for exposing a cruise missile strike that killed civilians and interviewing Anwar Awliki.

Try bring any of the recent abuses of our Constituion to a court of law and most are shut down by State Secret privlideges. Many abuses of civil rights are currently untriable.

The U.S. pretends to have opposition parties but in fact the two parties we have are two sides of the same coin pursuing the same agenda on most issues that count, and only differing on wedge issues or where tax money is squandered. Third parties are ruthlessley suppressed, marginalized and muzzled in the U.S. especially ones which challenge the status quo.

The U.S. doesn't practice overt censorship, the U.K. is farther down this road. The U.S. favors more suble censorship and propaganda using a small number of corporate controlled media companies who do most of the shaping of public opinion. The U.S. prefers just listening to and recording what everyong is watching, reading, listening to and saying so they can spot the troublemakers.

The U.S. is actively planing for the near future when there will more terrorist attacks (i.e. 9/11), natural disasters(i.e. Katrina), protest movements (i.e. Occupy) and resource shortage shocks and when they occur they will ratchet up the police state a few more notches.

If you want an eye opener on the next generation global police state the U.S. has become grab a copy of Jeremy Scahill's Dirty Wars. U.S. special forces and intelligence are now roaming the globe engaging in largely unsupervised executions, renditions, torture and spying. This started under Bush/Cheney and Obama has actually dramatically accellerated and extended it. Some of their attacks have been very successful like killing Bin Laden, many of them are deeply flawed, killing large numbers of innocents, including women and children, and spawning new generations who hate America. The important part being they have almost no oversige from Congress or the judiciary, and often inadequate oversight from the White House and Pentagon who are running this global police apparatus.

By definition, it's therefore gratuitous

[sandbagger]

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?

Re:By definition, it's therefore gratuitous

[INT_QRK]

Of course "they have the [power] to do to us anything we [don't] stop them from doing." That's a universal human and historical truth, and subject of Benjamin Franklin's answer to a passerby's question at the close of Constitutional Convention in 1787 with the veiled warning: "a republic, if you can keep it.' It's also the reason for the Bill of Rights which can only have meaning as long as there is vigilant scrutiny and determined enforcement. My only quibble with Heller is that fundamentally only individuals can have rights; governments, or any collectivist formulation, have only have persuasive or coersive power.

Re:By definition, it's therefore gratuitous

[dkleinsc]

In addition, it's worth mentioning that the US currently defines its "border" as anything within 100 miles of any land or sea border, or any international airport. As a matter of standing case law, it is legal for them to grab you in, say, San Francisco, and search your laptop, cell phone, person, papers, and effects, without providing any legal justification other than "You're in a border zone".

And of course, Mr Abidor being a scholar of Islamic Studies had absolutely nothing to do with him being stopped, that was total coincidence.

And what they're looking for isn't so much evidence of criminal activity as it is dirt on people, in case they need to protect America by blackmailing people like they did in COINTELPRO.

Time for another letter

[frdmfghtr]

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?

Re:Time for another letter

[Chelloveck]

Unless you include a huge "donation" check in your letter . . . your "representation" won't even receive your letter. The secretary will just toss it in the trash.

Nah, it'll get aggregated by subject matter. In the month-end statistics it'll just be another check for "concerned about border security", prompting the lawmaker to introduce a bill to *require* searches of all laptops. Mission accomplished.

Re: Time for another letter

[Anonymous Coward]

Well, it certainly wasn't Albert Einstein. The quote first appeared in print in 1983 (in a book by Rita Mae Brown), when Albert Einstein had already been dead for 28 years.

"Every quotation sounds better when it is attributed to someone genius" - Isaac Newton

Re:Time for another letter

[FridayBob]

... I'm getting tired of writing these letters, yet I'll do it again and remind my "representation" of my position. Anybody else?

Your pleas are falling on deaf ears, because your representatives in Congress today don't work you anymore: to them it's all about the money they need to get re-elected, so now they only work for their donors. Even Obama, who received so many small donations, got 70% of his campaign cash from big donors, mainly from people on Wall Street (which is why he will never prosecute them).

Therefore, what we must do is fix the underlying problem first: by getting big money out of politics.

This would be difficult in any other country with a corrupt political system, but luckily the United States Constitution happens to include Article Five, which describes an alternative process through which the Constitution can be altered: by holding a national convention at the request of the legislatures of at least two-thirds (34) of the country's 50 States. Any proposed amendments must then be ratified by at least three-quarters (38 States).

Is anybody doing this yet? Yes. WOLF-PAC was launched in October 2011 for the purpose of passing a 28th Amendment to the U.S. Constitution that will end corporate personhood* and publicly finance all elections**. Since then, many volunteers have approached their State Legislators about this idea and their efforts have often been met with unexpected bi-partisan enthusiasm. So far, 50 State Legislators have authored or co-sponsored resolutions to call for a Constitutional Convention to get money out of politics! Notable successes have been in Texas, Idaho and Kentucky.

However, if the State Legislators are also corrupt, why are they helping us? Well, maybe they aren't as corrupt as you think. And even if they are, the important thing is that they seem to be just as fed up with the Federal government as we are -- so much so that they seem quite happy to help out with this effort. After all, it's a pretty simple proposal that speaks to both Democrats and Republicans.

If you think this idea makes sense, you can sign this petition, donate, or even take action by personally contacting your favorite State Legislator and asking for a meeting. It's easier than you might think and as a result we might be able to change this awful situation sooner than you think.

.

*) The aim is not to end legal personhood for corporations, but natural personhood. The latter became a problem following the Citizens United v. Federal Election Commission ruling, which grated some of the rights of natural persons to corporations and makes it easier for them to lend financial support to political campaigns.

**) At the State level, more than half of all political campaigns are already publicly financed in some way, so there's nothing strange about doing the same for political campaigns for federal office.

Re:Time for another letter

[dcollins]

This. I've gotten email responses that were the exact opposite of what I was writing about. In particular, when I wrote to my congressman against draconian copyright regimes (including my role as owner & developer of a small software business), the response was that they sympathized with my professional role, and in light of that would continue to work on strengthening copyright enforcement.

Copyright

[Anonymous Coward]

Stick a copyright notice on your laptop.

"The contents of this laptop are copyrighted. Licensed for use by owner only."

Then sue them.

Re:TrueCrypt

[myowntrueself]

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.

Sigh

[ledow]

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...

We fought a war for Independence over much less

[EmagGeek]

Sad, isn't it? We live under far worse tyranny today than we did under King George III.

Re:TrueCrypt

[ljw1004]

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?

Re: Busting out my tinfoil hat...

[Concerned Onlooker]

"As far as I can tell anything not deemed illegal is legal for government operations."

That's kind of funny, because that is exactly what the Constitution grants to ordinary citizens. The ninth amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The US is heading down a very bad path.