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US Courts Consider Legality of Laptop Inspection
Posted by
CmdrTaco
on Tue Jan 08, 2008 12:19 PM
from the my-porn-is-all-grown-up-anyway dept.
from the my-porn-is-all-grown-up-anyway dept.
ceide2000 writes "The government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer's hard drive, the government says, is no different from looking through a suitcase. One federal appeals court has agreed, and a second seems ready to follow suit." This story follows up on a story about laptop confiscation at the borders from a few months ago.
Related Stories
[+]
News: Laptops Searched and Confiscated at U.S. Border 527 comments
An anonymous reader writes, "According to an article in the New York Times, the Association of Corporate Travel Executives is asking the U.S. government for more detailed guidelines on when and why a laptop gets confiscated at the U.S. border, which, anecdotally, is happening more often. The story includes a report from a business traveler who had her laptop confiscated over a year ago and has yet to have it returned." According to the article, a knowledgeable lawyer said: "[Border guards] don't need probable cause to perform... searches under the current law. They can do it without suspicion or without really revealing their motivations." And an ACTE exective is quoted, "Potentially, this is going to have a real effect on how international business is conducted."
[+]
Hardware: The iPhone Meets the Fourth Amendment 505 comments
background image writes "According to Alan M Gershowitz, the doctrine of "search incident to arrest" may allow devices such as mobile phones, PDAs and laptops to be thoroughly searched without either probable cause or warrants [PDF download below abstract]. Incriminating evidence found in such searches may be used against you whether or not it is germane to the reason for the original arrest. He notes, 'Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone, and courts have not yet been called upon to answer most of the difficult questions posed by such devices.' We've discussed similar search issues recently, as well as other privacy concerns related to modern technology.
[+]
Hardware: US District Ct. Says Defendant Must Provide Decrypted Data 767 comments
An anonymous reader writes "If you're planning on traveling internationally with a laptop, consider the following: District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case. Laptop searches at the border have been discussed many times previously. This is the case where a man entered the country allegedly carrying pornographic material in an encrypted file on his laptop. He initially cooperated with border agents during the search of the laptop then later decided not to cooperate citing the Fifth Amendment. Last year a magistrate judge ruled that compelling the man to enter his password would violate his Fifth Amendment right against self-incrimination. Now in a narrow ruling, US District Judge William K. Sessions III said the man had waived his right against self-incrimination when he initially cooperated with border agents."
sohp notes that "the order is not that he produce the key — just that he provide an unencrypted copy."
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next will be... (Score:5, Insightful)
Welcome to the USA.
How I do it... (Score:5, Funny)
I encode all my dangerous stuff with everyday words and string them into mundane sentances disguised as personal communication.
There, everything you need to construct your own death star is in the line above. Oh, and some extra information is hidden in this line about exhaust ports. Damn, I just realized, my encoding for "exhaust ports" renders as "exhaust ports". Well, back to the drawing board.
Parent
Re:How I do it... (Score:5, Funny)
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You will be killed for your insolence (Score:4, Funny)
*CTHHHHK*
*KHHHHH*
*CTHHHHK*
*KHHHHH*
Now bring me my burrito!
Parent
Re:next will be... (Score:5, Interesting)
The Fourth in itself doesn't really say anything about privacy. It doesn't even keep the government from prying into our private affairs. It does two things: it prevents the government from "unreasonable" (that is to say more or less irrational) seizures and searches. It doesn't even require a warrant for any search or seizure, but it sets standards for warrants where they are customary. If you are a strict constructionist, it doesn't do anything more.
It is centuries of judicial interpretation and faulty pedagogy that have invested the fourth amendment with privacy protecting powers. Conservative jurists have fought this every step of the way. It was innovators like Louis Brandeis who saw a "right to be left alone" implied by the fourth and fifth amendments, and liberals like William Douglas (Griswold v. Connecticut) and Harry Blackmun (Roe v. Wade) who found a right to privacy in the "penumbra" of the fourth, fifth and fourteenth amendment. It certainly isn't there in plain words, but what is there (they would argue) doesn't make sense unless is protecting such a right.
Strict construction is an argument against this kind of reasoning. However if you believe in this philosophy, you'd better be pretty accurate about what the Constitution does say, because it lacks a great deal of the mechanics you'd need to protect individual liberties, although the spirit is there.
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Re:next will be... (Score:5, Insightful)
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Re:next will be... (Score:5, Insightful)
The citizenry is a subset of the people. The word 'citizen' was left out of the Bill of Rights on purpose - the colonial British were fond of stripping citizenship in order to carry out all manner of injustice on people.
Not to mention the fact that the political philosophy that gave birth to our nation does not limit human rights to "citizens" of some hypothetical state, but applies it to all humans equally. It would have been hypocritical for our founders to then limit recognized human rights to citizens only.
Which, incidentally, is why I don't buy any of the government's arguments about why imprisoning people in Guantanamo is legal.
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Re:next will be... (Score:5, Interesting)
The British Crown would not have stripped colonials of citizenship, for the simple reason they didn't have citizenship. Nor did any resident of Britain from the lowliest Cockney tinker to the haughtiest peer of the realm, for the simple reason the Crown didn't have citizens, it had subjects. Of course the Crown was never an absolute monarchy, it was never anything like the crown of France, or Spain. The barons had this thing called the Magna Carta.
There were always a few Whigged out eccentrics who thought ordinary people had, not just a few basic rights, but something called liberty. Many people toyed with such views in their phase of youthful indiscretion, but it was the overseas provincials who really bought into the whole delusion. So much so that when they gained their independence, they set up their entire government the exact way they thought the government in London was operating all along. There were a few republican small r twists. The King was called the President and he was elected every four years. The House of Lords was called the Senate (wealthy provincialism is no barrier to having a fine library of Latin works) and the commons was called the House of Representatives. But pretty much they took the customary powers of each piece of the English government (as they understood them) and put them down in a document that ensured that government would be weak and far away, just like in the good old days before the King started taking an interest in Colonial affairs.
They didn't bother to write everything down, like exactly when warrants are needed, because everybody already knew how that was supposed to work. Which is why the Constitution didn't have a Bill of Rights to begin with. Once it was proposed, it wasn't really a controversial idea; some people had a bee in their bonnet about what seemed perfectly clear to most people, so they did what Americans always do when faced with a complex philosophical problem like the relationship of the people to the government. They put together a quick patch that seemed to cover most of the things people were most concerned about, got it passed, and got on with the business of innovation, territorial expansion, and generally making money.
Consequently, a lot of what they put down is open to interpretation. Interpretation being what it is, this is sometimes a good thing, and sometimes a bad thing. As much as I agree that the people have human rights, and the Bill of Rights reflects this, people can and do make serious arguments that it doesn't apply to people who are aliens. Whether it did or not would probably have been clear to every patriotic American in the first decades of independence.
Which doesn't mean they'd actually agree on anything, other than the meaning was plain one way or another.
Parent
Re:next will be... (Score:5, Insightful)
I should have chosen my words more carefully: they'd be stripped of the protections of the Magna Carta and associated law by merely declaring them enemies of the crown. Such abuse is well documented.
Fair enough.
And on principle I simply can't accept those arguments. Anyone who is believed to have done something so heinous should have such evidence presented against them in a public court of law. Law, justice, its practice, and people's faith in the fairness of that law is seriously compromised when "justice" becomes something done in secret. I think the value of transparency and general faith in the principles of one's government are greater than the value of some supposed secret.
I ponder on that point frequently; it's unfortunate more of our founders' ideas weren't explicitly written down. So much of what they took for granted has changed. They KNEW it was inevitable that we'd lose sight of the principles on which this country was founded; Jefferson wrote extensively on the subject.
Then, sometimes I think that BECAUSE they knew it was inevitable, they didn't attempt to stave it off; and instead allowed for the situation when revolutions would have to be fought again, because attempting to hold off the need for revolutions pretty much prolongs the inevitable.
And then, sometimes, I get tired of thinking of the whole thing and wish I could be as indifferent as everyone else seems to be..
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Re:next will be... (Score:4, Insightful)
I was the GP.
At any rate - yes, our founders struggled with the seeming hypocrisy of the issue for the rest of their lives. Jefferson was especially bothered by it, which is why he freed his slaves in his will. It was a terrible compromise made so that the US could be formed at all; the Southern States would not have joined the Revolutionary War had they not been promised that they would be able to keep their slaves, nor would they have ratified the US Constitution. In that case, unity was chosen as a higher value than the ideals the nation was founded on.
Some call the Civil War the "last battle of the American Revolution" precisely because it finally addressed that issue.
I'm American; personally? I don't justify it. Some say it was an overall good because it eliminated slavery, which is a fair enough argument; the problem I have with it is that the Civil War was used to justify solidifying the power of the Federal Government over the many US States. It was at that point that the centralized power of the US began to grow, and we see what the effect of that concentration of power has been.
Abraham Lincoln justified the war in legalese by saying there was no justification to dissolve the union, or more precisely, that there is no exit clause in the Constitution if States decided they no longer wanted to be part of it. It was a calculated risk backed up by military force but the justification he used has always been questionable.
It was a laudable goal to eliminate slavery, but that wasn't the reason the Civil War started; it was only a very small part of it. Not until 1863 did Lincoln say that abolishing slavery was one of the goals; prior to that, it was all about putting down the rebellion.
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4th Ammedment is fine... (Score:4, Insightful)
Kinda vague, is not it? What's reasonable? Up to the courts, really...
And the courts have determined [64.233.169.104], that such "administrative searches" are Ok "as long as they are "conducted as part of a scheme that has as its purpose something "other than the gathering of evidence for criminal prosecutions."
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But (Score:5, Insightful)
No you have a choice. (Score:5, Insightful)
B. You can go back where you came from
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Re:No you have a choice. (Score:5, Insightful)
What if you came from the US? I know that many Americans are ok with tourists to the US having no privacy rights, but what about US citizens - is it ok that a citizen loses his rights as soon as he encounters US borders? It seems the 4th amendment ought to protect you against "unreasonable searches and seizures". It's certainly reasonable to search a suitcase for illegal drugs, explosives or quantities of goods which exceed the import limits. All of these things are directly border-related. However is it reasonable to search a laptop at the border? Sure a laptop might contain illegal files, but that's always the case. So if it's reasonable to search for these at the border, it should be reasonable to search for these on all computers all of the time.
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Ridiculous (Score:5, Insightful)
No, they are pretty much just looking for naughty pix of little kids - that's it. And much as someone might find that offensive, sorry it just aint "dangerous."
It's encouraging to see ONE judge in this country got it right - _personal_ computers are an extension of our mind and deserve the utmost protection.
Parent
Re:No you have a choice. (Score:5, Informative)
It's called TrueCrypt [truecrypt.org] and is available for Windows, Linux and to some degree for OS X.
* Creates a virtual encrypted disk within a file and mounts it as a real disk.
* Encrypts an entire hard disk partition or a storage device such as USB flash drive.
* Encryption is automatic, real-time (on-the-fly) and transparent.
* Provides two levels of plausible deniability, in case an adversary forces you to reveal the password:
1) Hidden volume (steganography - more information may be found here).
2) No TrueCrypt volume can be identified (volumes cannot be distinguished from random data).
* Encryption algorithms: AES-256, Serpent, and Twofish. Mode of operation: LRW.
Further information regarding features of the software may be found in the documentation.
Parent
Re:But (Score:4, Interesting)
This has less to do with protecting the public than it does with further conditioning the public to EXPECT to surrender for ANY reason, even without suspicion or due process or valid warrants.
Why, just WHY should the public trust some low-level functionary or scanner operator to NOT heft away with product ideas?
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Re:But (Score:4, Insightful)
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Re:But (Score:5, Informative)
So, if we actually followed the Bill of Rights, no one should be compelled to give that information, regardless of where they come from.
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Re:But (Score:4, Interesting)
It's foolish not to find out about the laws and customs before you travel to foreign countries. Of course if you are a tourist I think the agent can just refuse you entry anyway - which might be better if you really do have something to hide. Though a refused entry record is going to make international travel a pain for the rest of your life.
If you're a citizen, then the ka-ching sounds will be making it hard to concentrate as you try to get everything on record for the sue everyone vaguely involved action that's coming...
Of course there's always the chance you get shipped off to the middle east for some torture since you look like you might have once been in the same building as someone who went to school with someone who is a suspected terrorist. It's not something I'd try, but then again I wouldn't be trying to cross the border with child pornography on my laptop...
Parent
Re:SmartCard (Score:4, Insightful)
No. But if I'm understanding some other posters here, they DO have the authority to simply keep your laptop. That seems to be the problem with most of these "solutions": no, the Feds don't get to see your data. But you're out maybe $1500 worth of laptop that you'll never see again.
Chris Mattern
Parent
Suitcase opening... HAH! (Score:5, Insightful)
Re:Suitcase opening... HAH! (Score:5, Informative)
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Re:Suitcase opening... HAH! (Score:5, Informative)
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No, it's worse than that (Score:5, Interesting)
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Re:Suitcase opening... HAH! (Score:5, Informative)
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new laptops too? (Score:3, Funny)
A better analogy... (Score:5, Interesting)
I think the answer is: no, that's not allowed. They are allowed to search in order to satisfy themselves that it is a book/document and not something nefarious (bomb, contraband, etc.)... but beyond that they cannot go rummaging through any data you happen to be carrying on your person.
By analogy, I would expect that physically inspecting a laptop (to make sure it's not hiding anything nefarious) is okay, but I can't think of a legitimate reason to start scanning through the data on it.
Re:A better analogy... (Score:5, Interesting)
If I wanted to get information beyond the border without It being noticed, a partitioned MP3 player HD hiding an encrypted volume.
The MP3 player plays just fine, but only a physical search by a trained IT person would even notice that something was wrong. especially if I "upgraded" an old 20gb model with a 40 or 80 gb hard drive, and partitioned it in such a way as to leave 20gb for the player, and the rest was hidden from view, unless inserted into another computer.
I just thought of that reading these responses.
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You're doing it the hard way. (Score:4, Insightful)
In fact if transporting data is your only reason for entering the country, just upload the nefarious data to one of the free FTP sites, and email the link to your partners-in-crime. Why risk being caught at the border??
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4th Amendment (Score:5, Insightful)
The 4th does not apply to border searches (Score:5, Informative)
The 4th amendment only covers "unreasonable" search and seizure. Border searches are considered reasonable, and therefore require no warrant. This was formally codified by the 1st Congress (thank you Findlaw), who could be assumed to know the intentions of the founding fathers. More intrusive operations over and above a cursory search (such as X-Rays, or I supposed computer checks) only require "reasonable suspicion", as opposed to the more strict "probable cause".
The current version of the law states:
19 USC 1581:
(a) Customs officers
Any officer of the customs may at any time go on board of any vessel
or vehicle at any place in the United States or within the customs
waters or, as he may be authorized, within a customs-enforcement area
established under the Anti-Smuggling Act [19 U.S.C. 1701 et seq.], or at
any other authorized place, without as well as within his district, and
examine the manifest and other documents and papers and examine,
inspect, and search the vessel or vehicle and every part thereof and any
person, trunk, package, or cargo on board, and to this end may hail and
stop such vessel or vehicle, and use all necessary force to compel
compliance.
I would think a search of the hard drive falls well within a "package".
SirWired
Parent
well said (Score:4, Interesting)
They remind me a bit of the similar folks who fuss about the dangers of vaccines or chlorine in the water supply, because they've lived in a world with powerful antibiotics so long they no longer really believe that deadly bacteria exist and can kill you dead without some basic precautions at the similar "border" between one's body and the outside world.
Parent
I'm holding this airplane hostage with excel! (Score:3, Insightful)
On the subject of encrypted data, here's an interesting question, what if the user doesn't have the key (e.g. a messenger)? Do they have to delete that data? And how do they know it's entirely deleted? Do they run Nuke and Boot on the user's hard drive?
It seems to me this is just a classic case of political "Lets make laws on things that we don't understand and scare us".
It's tricky (Score:4, Interesting)
There's a few things that make it different. First, by opening a suitcase and performing a cursory inspection, an official doesn't read every notebook and letter the traveler is carrying. A customs official that takes a computer for inspection can do all kinds of unreasonable things to it, and there's little that can be done about it. There's also the problem of figuring out what is illegal: Should a traveler prove that every mp3 he is carrying was ripped legally? Should we have to carry the licenses of all commercial software? It'd be crazy.
And finally, there's the fact that anyone smuggling software will just get an internet connection and send it across through the wire.
Lessons (Score:3, Insightful)
Don't forget the one about not being a pedo, I mean, I know, it isn't that obvious, but still, just in case you didn't catch it, don't be a damn pedo.
Honestly, I am not sure how I feel about boarder inspections. Yes, they are important to some degree (it IS illegal to traffic in certain things). However, they should also have a good REASON to search you.
If we accept them doing random stops and searches (I honestly don't know how I feel about this), or if they have good reason to stop and search you, then I have no problem with them searching your laptop as well. They obviously should not keep records of ANYTHING found in there (unless breaking a specific law), however searching a laptop when you are already searching the person/car for somethign that likely could be found on the laptop? why not?
All in all, I dono. It seems a slippery slope problem, but it also seems relatively reasonable (Again, assuming there is a good reason for the search in the first place)
New plan for border agents... (Score:5, Funny)
Thousands of JPGs within? Check.
All JPGs are hello.jpg? Checkmate.
Re:New plan for border agents... (Score:5, Funny)
Rubber glove? Check.
Any way to refuse? Checkmate.
Parent
I guess they don't like tourism revenue (Score:3, Insightful)
Not about rights, but rather usefulness (Score:5, Funny)
Just create a dummy account? (Score:5, Interesting)
If you assume somewhat more sophisticated inspectors, you may want to put what can be construed as nefarious software (nmap, tcpdump, nessus, kismet, etc) in a more secure than normal place.
Now, if you expect the thing to be confiscated, that is a different story.
Johnny Mnemonic (Score:4, Funny)
Company Computers and NDA's?? (Score:4, Interesting)
Re:Company Computers and NDA's?? (Score:5, Interesting)
The US Customs agency is operating under the mandate that they can detain you and/or inspect you arbitrarily, and that you have no legal recourse against it.
You used to be able to say "I withdraw my petition to enter your country" and they'd just basically ship you back. Now, they don't really care. Gonzales basically gave them a legal opinion that says you, as a foreign national, have no legal protections or expectation of privacy. I'm not sure of the specifics, but at one point, they said "we can do anything we like".
Refusing to give them the information on the grounds of a NDA will mean nothing to them. They'll jail you if they want to. They are not bound by your NDA, and they can compel you to answer whatever they ask or open what they request.
I wouldn't be willing to try to stand behind an NDA with my company at a US border -- but then again, I don't plan on presenting myself to one any more. Over the last few years, I have decided that there really isn't a compelling enough reason to travel to the US. The level of draconian crap and complete loss of rights which can ensue is just not worth the exposure or the risk.
It gets echoed a lot here on Slashdot, but an awful lot of people simply will not travel to the US again.
Cheers
Parent
Terminal A? (Score:5, Funny)
On two separate occassions I've been asked to boot my machine. On both occassions the security officials became quite disturbed when they saw a text only boot sequence. One asked me to turn the machine off immediately and after 30 minutes I was able to explain what was on my computer in a way they liked. The second incident was worse. Once my laptop had come out of suspend-to-RAM the security guy demanded "Log into your computer please". On seeing a single maximised xterm he became nervous. He held me until an official came down from upstairs, who promptly laughed warmly and said "It's unix. It's OK".
I know a couple of other people that have been in very similar situations.
These days I have a session manager such that I can boot into a clean GNOME desktop should such a situation arise, complete with soothing coastal background image.
The rationale for having me boot my computer apparently was that it may be a bomb, not that my contents might be suspicious. The logic of having me sit in front of them and power on a bomb just to find out if it is, in fact, a bomb still escapes me to this day. Nearly as bizarre as the giant liquids disposal vat at security check: "Please mix your bomb ingredients in this packed airport instead of on the plane. Thankyou."
Re:Terminal A? (Score:4, Funny)
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Re:Terminal A? (Score:5, Funny)
Simple. If your computer switches on and acts as a computer should, then it's clearly not a bomb. There is absolutely no way to replace the hard drive with a miniature solid-state device running a basic OS install, and the battery with a much smaller one sacrificing battery life for extra room, and use the space saved for a big lump of Semtex to be triggered by echo detonate > /dev/bomb. This is entirely impossible. Which is fortunate, because otherwise they'd have to ban laptops on flights, and that would upset the rich.
Parent
Re: (Score:3, Informative)
Re:What are they looking for? (Score:5, Funny)
-Rick
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Re:If you can search a suitcase... (Score:5, Interesting)
It's going to interesting the first time one of these cases reaches the USSC. What happens if I encrypt my data with AES 256 (certified for TOP SECRET data), I get stopped at the border, and I refuse to give up my encryption key? Since I'm a citizen, they can't deny me entry, they can't hold me until I give up my key, and they can't decrypt the data. An interesting situation. As a former police officer, I know how I'd handle the situation without breaking the law and without holding the subject in jail, but I doubt that most DHS folks would have that much creative imagination.
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