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Judge: Warrantless Airport Seizure of Laptop 'Cannot Be Justified'
SonicSpike writes with news of a ruling in U.S. District Court that the seizure and search of a man's laptop without a warrant while he was in an airport during an international border crossing was not justified. According to Judge Amy Jackson's ruling (PDF), the defendant was already the subject of an investigation when officials used his international flight as a pretext for rifling through his laptop. The government argued that a laptop was simply a "container," and thus subject to warrantless searches to protect the homeland. But the judge said the search "was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim's privacy and so disconnected from not only the considerations underlying the breadth of the government's authority to search at the border, but also the border itself, that it was unreasonable."
She also noted that laptop searches may require more stringent legal support, since they are capable of holding much more private information than a box or duffel bag. And while a routine search involves a quick look through a container, this search was quite different: "[T]he agents created an identical image of Kim's entire computer hard drive and gave themselves unlimited time to search the tens of thousands of documents, images, and emails it contained, using an extensive list of search terms, and with the assistance of two forensic software programs that organized, expedited, and facilitated the task."
She also noted that laptop searches may require more stringent legal support, since they are capable of holding much more private information than a box or duffel bag. And while a routine search involves a quick look through a container, this search was quite different: "[T]he agents created an identical image of Kim's entire computer hard drive and gave themselves unlimited time to search the tens of thousands of documents, images, and emails it contained, using an extensive list of search terms, and with the assistance of two forensic software programs that organized, expedited, and facilitated the task."
I've never seen where lack of justification ever stopped the government.
“He’s not deformed, he’s just drunk!”
The moral of this story is:
1) The TSA and assorted related three letter agencies don't give a crap about due process or warrants anyways
2) If you're travelling through the USA (into, out of, or stoppover in), either don't bring any electronics at all, or only bring freshly wiped stuff with absolutely no personal data on them. Blob up your personal files into a passworded file somewhere on the 'net that you can download when you get where you're going, and don't carry the URL for it on your person.
... agents created an identical image of Kim's entire computer hard drive ...
So in addition to conducting an illegal search, they also violated several copyrights.
That is, do criminals live in a world without disk encryption?
How long will it be before Obama tries to defrock this judge, or until the judge just turns up in a ditch somewhere?
The government argued that a laptop was simply a "container,"
They x-rayed it and it obviously wasn't full of explosives and it's not a liquid container of 3 ounces (or less) in a "one quart sized, clear plastic bag".
If they can prove that the files on the computer can somehow explode and be an imminent threat to the flight he was on, I might agree with the TSA. Otherwise I hope this judges decision is upheld. It would be a nice baby step toward having our constitutional rights restored.
What troubles me most is the mindset that allows this kind of bullshit to occur regularly- - and I can only assume it's because there is a now a concrete pattern of never prosecuting government officials for crimes like this.
The long-term message that comes from NOT prosecuting government torturers, mass surveillance-ers and directors who lie to congress is there will be no consequences, so there is no reason to stop. Is it Snowden who should be prosecuted, or every person who works at the NSA, knew what was happening and that it coudln't possibly be legal, and did NOT speak up?
PS- hi, nsa
This is why I never fly with my primary computer, but with a burner laptop - usually a Chromebook that has just been reset to factory defaults and hasn't even been reconnected to Google yet.
I write sci-fi for metalheads
So much for the chance that Amy Jackson will ever be nominated to serve on the US Supreme Court.
So long as an American citizen is travelling within the US, even if by air, there is no justification for any search or seizure of his or her personal documents, thoughts, or even religion.
My laptop may contain personal information, and only with a specific court order by a judge (not a blanket warrant for "all Americans") can they force us to reveal our personal data or thoughts.
It doesn't matter what their excuse is.
Can they scan it for potential hazards, or ask us to turn it on to "prove" it is not a hazard?
Sure.
But that is all the Gestapo can do.
-- Tigger warning: This post may contain tiggers! --
It's rather astounding that they went through the search and then decided that it was worth requesting the warrant. Did it never occur to them that they were doing things backwards?
The American Civil Liberties Union has long maintained that the authorities invoke the border exception rule to the warrant requirement to build cases when they don't have probable cause to get a warrant.
shocking enough, the border rule works up to 200 miles inland. People often forget law enforcement agents are not your friends, and generally do not have your best interest in mind. they can and do lie, falsify evidence, and purjor themselves on witness stands. They will rifle through suitcases and backpacks without a warrant, in the hopes you forget about that right. They will strike, kick, and even kill you for attempting to exercise rights or hold them accountable. Prosecutors and DA's offices care more about a successful conviction than a fair one, and so will often target a suspect with a litany of flimsy charges and lengthy jail time. The hope is that you accept a plea-bargain, convict yourself, and save everyone the discomfort of learning how many of these charges will not stand up in court.
Good people go to bed earlier.
And leave the battery at 1%?
I'm not sure how intricate they get with laptops, Are you just required to show that it turns on? They can't rifle through it if it's out of juice. Or do they keep an emergency set of generic power adapters?
"Well kids, you tried your best, and you failed. The lesson is, never try." -Homer Simpson
1) The TSA and assorted related three letter agencies don't give a crap about due process or warrants anyways
I highlighted the part you chose to ignore, which does cover DHS (and the FBI, CIA, ATF, etc.. etc..). Next time you want to yell about someone else not reading a f*&king article, make sure you are not guilty of something worse.
People do not realize the US has always exerted strong export controls. These accelerometers are most likely ECCN 7A001 (maybe 7A101) and software for their control 7D001 and drawings/specs 7E002 . All highly controlled.
I see no legal reason the border search exemption should be symmetric (incoming/outgoing) since the consequences are different -- inbound contraband can always be later seized; what is lost to outside is gone. DHS should have searched laptop and seized it if controlled material found (as in imminent danger of being experted.) Copy & release was very wrong.
I strongly suspect this ruling will be appealed and overturned, at least in part.
You should expect the unexpected search and seizure everywhere. Put your stuff somewhere in the cloud under a few super duper locks and travel with no tech gear or burner gear. Another alternative is to travel with devices reset to factory settings. If you need a phone in case of an emergency, get a pre-paid feature phone.
"with the assistance of two forensic software programs that organized, expedited, and facilitated the task."
Oh, a "software program"... As opposed to a hardware program? an exercise program? What's wrong with just calling it "software",
Take the HDD out. pack it in air bladders, ship it to the location you are going to, or to the hotel. Fly with the laptop, sans hard drive, or another that's just windows. Then when you get to your destination pop in the "real" HDD.
Ever notice that police are quick to cite a court rulling when the works in their favor, but when it is a ruling the police don't like, then they have a very selective memory.
I was asked to login into my phone emails and facebook on the laptop flying back to Miami from Bahamas in my private plane.
4 officers took over an hour going over all pictures in my camera, emails going way way back, friends posts on facebook and facebook messages some over a year old.
I gave them all access immediately, but then asked about this process and they gave me a CBSA leaflet that explained if I denied them access they will confiscate the device, copy the contents and ship it back to me.
I got to keep my electronics because I gave them immediate access even though it cost me long distance data plans there.
Being a Canadian citizen, I dont think I have any teeth to complain to anyone but our own politicians here. And all they can do is make life miserable for US citizens entering Canada in retaliation.
I'm just so glad I havent cracked any stupid jokes regarding violence, drugs or terrorism in the last 1-2 years in any facebook messages or comments.
"Give orange me give eat orange me eat orange give me eat orange give me you." -Nim Chimpsky
TSA et al have done the exact same thing with the laptops of people who aren't suspected of any criminal activity.
TSA doesn't conduct border searches; you fail on the very first sentence of your post. Border searches are typically conducted by ICE.
Actually, it's really irrelevant *which* agency does the search for these purposes. The question is the permissible scope of the border search exception, which is the same regardless of agency.
Fundamentally, arguments against the border search exception are usually weak. The Fourth Amendment was written largely by the same people who sat in the First Congress, and the First Congress explicitly granted customs officials the power to do thorough searches of ships, etc... in order to regulate contraband coming into the United States. Therefore we *know* that they considered such warrantless searches to be "reasonable" under the Fourth Amendment.
Laptops present a somewhat new issue because of how much of an intrusion a search of them represents, and there has been a little bit of pushback against *destructive* searches of people's property absent at least reasonable suspicion, but as a general rule the United States can do pretty much whatever it wants at its own border.
We just need to realize this.... EVERY illegal search is depravation of rights under color of law. EVERY time evidence is tossed by a court, there should be felony charges filed against someone for having collected it in the first place....no matter what that evidence is, or why they thought it was ok. No Exceptions.
I don't get to claim I thought my actions were legal, why should they? If my ignorance is no excuse, why is the ignorance of a professional an excuse?
Start locking a few of these rogue agents up for a decade or so and see how privacy rights start getting a bit more respect, and the government itself too....because it will be respecting the promises it made to us in order for us to allow it to exist.
"I opened my eyes, and everything went dark again"
Does rifling through files on someone's laptop ever give them hope of finding something hidden?
For years I had a machine with a measly 40GB HDD. Half the time I couldn't find my own stuff, when I was looking for it.
Like "Aw crap, where did I put those pictures, was that 2008 or 2009?"
"Oh, I need to download Handbrake.", and 2 minutes later, "Oh wait, I already had it."
"I could have sworn I started typing up a letter to Joe..."
"Where did I put Tempest 2000? Was that in 'games', 'DOS games', or 'old_games'?"
I can't believe I'm the only person like that.
Also, I can't imagine how much junk everyone else here, with their 4TB HDDs, has on their laptops.
Okay, I agree, it's a total invasion of privacy, but seriously, do they ever find anything?
Are they looking for a folder called "assassination plans" on the desktop?
Are they just trying to see if a person panics?
Will any of these bastards have their ass kicked? Will they serve any jail time for breaking the law or is the law something only regular citizens break and get punished for?
Because you see... if these bastards can keep doing whatever they please without any consequence, then the law that should protect us is totally useless. They will just re-do the same the next time as if nothing has happened.
I've read every comment and no one has said the obvious - Why are they so intent on searching a laptop anyhow? The way I see it, there are 3 possibilities 1) You're a normal person with a bunch of crap on your laptop that won't help the government 2) You are actually smuggling data you shouldn't be, in which case you are not stupid enough to carry it on your person (I.e. leave it in the cloud, simple) 3) You are the dumbest mofo in the history of smuggling or terrorism and you actually are carrying something incriminating. I doubt this has EVER happened, and assume the probability is 1 in a billion. Seriously... What a fucking waste of time. Do they really think terrorists are going to be that stupid? No. This is all a ruse to look for other shit.
March 25, 2015 arrived at DTW from HKG-ICN-DTW Delta Flight. Was one of two passengers I saw selected for CBP inspection. Interrogated by two CBP officers who finally admitted that due to my routing that month (DTW-SFO-MNL, MNL-CAN, HKG-ICN-DTW) and travelling alone as a middle aged, white, male, their computers had profiled me as a potential sex trafficker. I have BPO in Manila for 4 years, new client in CAN and flight was cheaper and more direct taking bus to HGK and flying with layover in ICN.
CBP agents then apologized said this was a horrible thing that they were being required to do, and that they were going to get me out of there, but that they would have to inspect my electronic devices and asked for the passwords. So I gave them thinking they could quickly see there is nothing illicit on them. But no....they come back with receipt signed by "J. Edward" and advise that since they don't have the equipment at DTW Airport to inspect - the devices will have to be sent for inspection and returned to me per the regs in 30 days.
The receipts have a place for putting in the contact information of who I am supposed to call about my seized property, but that wasn't filled out. (and don't for a minute I was in any jet lagged and dehydrated physical condition to think of arguing with these guys with guns. they could have raped me and I would have just asked them to please finish quickly. that's the psychological state many people are going to be in after a 12 hour international flight and 1 hour interrogation about where you were, who you saw and all.)
35 days after the seizure I am looking who to call, and no number on the receipt, so I go back to DTW and the CBP office, where I am told that there is no J. Edwards at the airport. J Edwards has an office "downtown Detroit" And one of the CBP officer calls me back later in the day with the number for J. Edwards. By then I have to ask, "How did J. Edwards signature get on my receipt?" Dude doesn't even have an office at airport.....and that's why they did not fill out his contact information, whomever signed J Edwards name, did not even know J. Edwards contact information.
So I call J. Edwards. He apologizes for the delay. Advises me that my nexus 5, Ipad Air, and Lenovo Yoga 3 are sitting on his back shelf, but since he is the only person covering this big area for Homeland Security and is constantly getting devices that could be linked to actual terrorist activity dumped on him for immediate inspection, he could not make any promises, but said he'd "hope" to get to it in 10 days. That was 12 days ago.
Being professionally involved in transport, I can't attack CBP, TSA or Homeland Security. Many of the people I've met in those organizations are perfectly nice. J. Edwards seem perfectly nice. But if property is being taken under color of law and the law, can't even fill out the forms according to "the law" and can't even get around to inspecting 3 devices - none of which have a disk drive - in 45 days - WTF???
This is just embarrassing. And to add injury to injury, I get home and my 5 year old has in my absence, seized my Kindle.....so no more The Good Wife on Amazon Prime for me....instead Kindle is tied up with Shaun the Sheep.
And - I've had to replace my Nexus....with a Nexus 6....any advice on the battery life for the Nexus 6.
I did talk to an attorney who specializes in these cases, but generally people are only willing to pay the $20k to file suit when there is something on their devices that results in criminal charges - then they are getting the evidence quashed on the seizure violation. In my case he said a threatening letter from an attorney would get the goods back within 24 hours - but the letter is going to cost as much as the devices.
I feel raped. I feel raped by this government. I feel raped by whomever gave them the regulatory power to do this. I feel that a number of people who work for the government, are just standing around watching me and others get raped and i
Then open the lid. Look at it. See if there's anything illegal sticking to the screen or keyboard. Anything? No? Then close it, just like it is a container or box.
You don't put a wooden crate through a lathe to see if the wood is hiding cocaine. And you don't see any digital information on the chips, you have to run the computer and get it to interpret the invisible patterns. And a box or container does none of that. So it goes well beyond treating the laptop (or HDD, etc) as a container.
If it's supposed to be a container, then treat it like one. And you don't switch on containers or run programs on them. You open them up, non-destructively, and look inside.
Since the laptop is opened up by lifting the lid, then that is what "opening the box" is. No user serviceable parts inside.
The TSA are idiots with no common sense. While I worked for a national security related police agency I was sent to Mexico to train their federal police officers. I had a plane change in New Jersey. Well the TSA decided that the 40 USBs in my bag, all brand new and still sealed in their packages, were "suspicious". So my plane left the US without any of my computer equipment - and of course no one told me. Everything was clearly labeled, I was travelling on a special government passport, and my police business card was attached to the bag with the equipment. The TSA folks opened all the USB wrappers and scanned every single one of the 40 blank USBs before sending them the next day on another plane. I now avoid the US on international flights as well as for tourism in general.
Are they allowed to do that with any other 'searches' that do not include a warrant? I mean, let's say that instead of a laptop you carried a briefcase full of documents. Could they photocopy those documents?
All outbound travelers should have a meaningful way of saying "no, I don't want you to search this thing. Hold it for me until I get back or until the person I designate retrieves it. I will pay reasonable and customary storage charges." The same option should be given for "not allowed on the plane" items like over-sized bottles, etc. where the flyer would not otherwise be arrested (in other words, either arrest and charge the person with a crime or give him the option of not having his "contraband" forfeited/trashed).
All inbound travelers should be able to say "no, I do not give you permission to search it. If it is suspected of being too dangerous to transport (e.g. explosives) you may destroy it at my expense, otherwise you may either ship it back to my home country at my expense or hold it until my departure and I will pay reasonable and customary storage costs."
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.