Senate Hearing On Laptop Seizures At US Border

suitablegirl writes "As we have discussed, Customs and Border Patrol is allowed to seize and download data from laptops or electronic devices of Americans returning from abroad. At a Senate hearing tomorrow, privacy advocates and industry groups will urge the lawmakers to take action to protect the data and privacy of Americans not guilty of anything besides wanting to go home."

Meaningless either way

[EdIII]

First off, I just love this asshole:
 

But travelers should not have an expectation of privacy when crossing the border, said Nathan Sales, a professor of law at George Mason University who also is scheduled to testify. He said that all information and possessions carried by individuals across the border such as documents or photo albums are fair game for search without reasonable suspicion and that the law doesn't provide an expectation of privacy just because information is stored digitally.

"We ought to have a law that is technologically neutral," Sales said. "The amount of privacy shouldn't depend on the format, digital or analog." He noted that the 11 challenges to the legality of the laptop searches were made by convicted child pornographers.

I hate to be vulgar, but what a fucking ass. Individuals have every right to expect that their documents and photo albums are not going to be searched and copied by agents at the border. I wholeheartedly agree with him that privacy should not depend on the format it is stored in. Of course I think we should actually have privacy regardless of whether the item is a physical item in your bag, or 1's and 0's in cyberspace.

What a great argument he makes too, that just because it has been child pornographers that have been caught first, and are pioneering the very first challenges to these laws, that they must be wrong, and therefore the basis of the challenge is wrong too .

Kind of reminds me of the douche bags that love to shutdown any arguments against DRM claiming that any opponents are clearly pirates.
 
 

Swire said he plans to tell the subcommittee how laptop border searches are similar to the failed encryption policies of the 1990s. "The government policy violates good security practices," he said. "It asks for password and encryption keys, which people are trained to never reveal. It violates privacy, chills free speech and compromises business secrets."

The travel association has informally studied the potential economic impact on business travelers. Gurley said lawyers carrying confidential client materials on their laptops or small business owners worried about the integrity of their business plans must make alternate arrangements such as purchasing another computer for travel and adjusting the way they transfer information.

No kidding. I am glad somebody is bringing this up. This policy will just create a strain on the corporate wallet for both corporations in the US and abroad. It is simply unacceptable for corporations to allow sensitive data to be copied or viewed by any unauthorized individuals. That includes all governmental agencies too. That is what search warrants are for.

I can see whole new lines of products designed to sanitize laptop hard drives before arriving at the border checkpoints and encrypted restore CD's that will bring a laptop back up on the corporate network and access to secure file systems.

Oh wait, they already have products that meet US Department of Defense 5220.22-M, and other such standards. Only now corporations will be forced to use for border checkpoints to protect against their own government.

For smaller businesses they will just have to send their laptop hard drives, and possibly their entire laptops through FedEx or UPS, or some other equivalent to bypass these insane policies.

A good lock only keeps out honest people is a saying I have heard for quite a long time. Well this policy will catch nobody a few years from now, since everybody will know that border checkpoints are dangerous.

Anybody else hear the terrorists (and other criminals) laughing hysterically? In fact, if one was so inclined to be a little more paranoid, you might think this is nothing do with catching criminals, but a new way to watch the American public and embarrass ourselves in front of the rest of the world.

For fuck's sake people! Let's stop exporting Democracy and Freedom to the rest of the world and start producing and keeping a little more of it here locally.

Has been legal since the Constitution was signed

[mdmkolbe]

Since the signing of the Constitution, border agents (not TSA) have always had the right to search persons crossing the border. They don't need probable cause or even suspicion. I'm not saying it is right, but this is the law.

Now if you want to change the law with respect to laptops, there are three key points. Ignore these and you won't win.

1. You must establish that border agents should only be searching for actual contraband and not intelligence gathering or filling any other law enforcement role. (This point should be easy compared to the remaining ones, but it still might be hard.)
2. You must establish that contraband couldn't be contained in the information on the laptop. (Hard to establish since it's not true as long as child porn is illegal.) In the alternate, establish that boarder agents shouldn't be responsible for finding information-based contraband. (Still a bit of a tough argument to make.)
3. If you fail on the previous point, you could try to establish that while border agents can search laptops without cause, they shouldn't be allowed to seize the laptops without cause.

This last point seems like it is the most likely to win, but it contains a hidden trap.

• First they establish that seizure should be possible when information based contraband (e.g. child port) has definitely been found.
• Then they draw an analogy between encrypted or password protected drives and the physical situation where someone tries to cross the border (let's say by car to avoid the TSA) with a steal safe. I'm not sure but I'd guess that if the person refuses to open the safe, then the border agents will either refuse entry, arrest the person or seize the safe. (For good reason, otherwise it would be a loophole big enough to drive a truck full of contraband through.)
• Then they bring up the physical analogy to TruCrypt: someone crosses the border with a safe and shows the inside of the safe, but the agents think the safe has a hidden compartment. I'm not sure if currently they can seize in this case. It's probably a gray area (e.g. if the safe model is well known for having a hidden compartment, etc.).

End result? Seizing laptops where nothing is encrypted and there is no contraband might stop, but searching laptops isn't going away any time soon and seizing laptops "with cause" will continue. It's just a question of how broadly we define "cause".

ECHELON/Warrantless Wiretapping

[mosb1000]

All data moving into and out of the US via the internet/other communications infrastructure is subject to searches by the US government. One program is Echelon, and the people who've tired to report on it and call attention to it are generally considered nut-jobs and conspiracy theorists (I'm not sure why, stories on it are always confirmed by credible sources, and the program was never strictly denied by the feds). Now there is "warrantless" wire-tapping, though as far as I can tell the government is not required by law to have a warrant to intercept this information but that is a question of legal interpretation. Perhaps the distinction is that the NSA is now doing it, where ECHELON is a CIA thing. Or maybe it's just that ECHELON has remains secret, while someone spilled the beans on the NSA program.

So no, searching these laptops is not pointless. And also, you clearly don't know what you're talking about.

Re:Meaningless either way

[Anonymous Coward]

Individuals have every right to expect that their documents and photo albums are not going to be searched and copied by agents at the border.

Those are two different things. Anything that crosses the border can be searched (even though the vast majority isn't). Copied is completely different. If you have briefcase full of papers, Customs isn't allowed to run them through the photocopier, but Customs can look at them.

I can see whole new lines of products designed to sanitize laptop hard drives before arriving at the border checkpoints and encrypted restore CD's that will bring a laptop back up on the corporate network and access to secure file systems.

Ummm, like a VPN? What a great idea! Go patent this immediately!

For smaller businesses they will just have to send their laptop hard drives, and possibly their entire laptops through FedEx or UPS, or some other equivalent to bypass these insane policies.

In case you didn't know, when a package crosses the border via FedEx, UPS, post office or any other method, it can be searched if Customs wants to search it. Sometimes they do, but the vast majority of the time they don't.

A good lock only keeps out honest people is a saying I have heard for quite a long time. Well this policy will catch nobody a few years from now, since everybody will know that border checkpoints are dangerous.

Just about everyone has heard of fingerprints, but lots of criminals are still caught that way.

Anybody else hear the terrorists (and other criminals) laughing hysterically? In fact, if one was so inclined to be a little more paranoid, you might think this is nothing do with catching criminals, but a new way to watch the American public and embarrass ourselves in front of the rest of the world.

Anything that crosses the border is subject to search by Customs (primarily to levy taxes & duties and keep out contraband). It has been that way for centuries.

Many, many other countries do the exact same thing. This isn't new or unusual.

Re:Meaningless either way

[Anonymous Coward]

Last week I was asked by my boss to attend a meeting in New York city, he asked me to hop by IT to have my notebook secured. Long story short, I was given a clean laptop, and an encrypted flashcard with my files. I did not have access to my files and had to call IT for a decryption key when I arrived at the hotel. Upon leaving the States I was instructed to destroy the flashdrive before going to the airport.

What this world is coming too is a riddle to me, but this experience did not make my trip to the States any more comfortable.

On a related note I was not searched and I was able to pass through without any trouble or delays.

Re:About time.

[Ihlosi]

... we'd have to outlaw encryption and stop cross-border Internet traffic.

Why ? You may not be able to catch the smart ones, but there's still plenty of dumb ones.
Not all of them are computer-literate (or math-literate, as seen in the guy who used
a Swirl filter to "obfuscate" his face).

If you can catch dumb criminals, why shouldn't you ?

Re:About time.

[countach]

Can someone help a foreigner to understand how the US has circumvented their constitution?

Re:Can we be a little more inclusive?

[Whiney Mac Fanboy]

don't (in the legal sense) enter the US.

I'm afraid the idea that you're in international territory until you've crossed passport control is a myth. Some countries decide to exclude parts of their airports from passport & border controls so those areas appear to be international territory.

The US doesn't treat their airports like this & couldn't have a case like (for instance) Merhan Karimi Nasseri [snopes.com].

I'm guessing your country has laws similar to France, but guess what? There's a big world out there & laws are not uniform.

If you don't like the US's laws, don't go to the country - simple as that (I don't & don't).

Re:Can we be a little more inclusive?

[Anonymous Coward]

I used to go to the US for all my holidays, since Bush got in, I went to Russia instead, then Cuba, next time it's gunna be France.

Re:Can we be a little more inclusive?

[mpe]

The issue here is retaining the data by making a copy of it. I am pretty liberal in my views in that I'd not be at all offended (I'd be annoyed with the time it took if they were going to bother doing it right) to have my laptop searched when crossing. I'll be right friggen pissed off if they want to clone my drives to inspect it later. I'm from the school of, "You got a problem or question for me then you ask me, to my face, and we'll deal with it there." The idea of them taking a copy, stealing if you will

Rather copyright infringement. Wonder what would happen if you were to try to set the BSA, RIAA and MPAA onto the TSA.

Re:ECHELON/Warrantless Wiretapping

[mpe]

If I enter the US with the intention of downloading my data after crossing the border I will need to being a secret of some kind with me. Any encryption simple enough for me to carry the secret in my head can be cracked by brute force.

You can probably manage to carry arround a secret which will tell you where the key is in your head. e.g. the title and page number of a book. You could probably exchange this information in out of band plaintext, email or phone call.

Re:About time.

[hedwards]

They can't do that, it would be a violation of the 5th amendment protection from self incrimination.

That probably won't stop them from strip searchin' you and otherwise humiliating you. As well as placing you on the no fly list. But they can't make you reveal the passphrase.

Blatant site pimping..

[rixster_uk]

Ladies and Gents - I am trying to collect incidents of security staff abuse (mainly at airports) in the vane hope that perhaps we can identify consistent transgressors of their authority and perhaps even send a message to the airlines that we are no longer going to give them our hard earned buckaroos if they don't put their (albeit indirectly employed) staff in line. I believe we can make a difference (as tacky as that sounds)

If you have a story, please either put it on the site or email it to me at [e-mail] . The site address is http://www.scareports.com/ [scareports.com] . I apologise now for the rawness (I'm trialling django technology as well).

Get over it!

[elysium-os]

For how many years are you not allowed to bring guns on airplanes.

Still the second Constitutional amendment states:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Well at that point you bear Arms, or am I way off here?

Re:About time.

[mpe]

I don't like the implication that because bad people like privacy so they don't get caught doing bad things, everyone who likes their privacy is doing bad things. There's a name for that particular fallacy, I think, but I don't remember.

It's a variation on the "(most) bad people do X therefore people doing X must be bad." Thing is that X may be a very common activity. It may even be the case that bad people are statistically less likely to do X than the general population.

It's really quite similar to the argument that law-abiding citizens shouldn't mind the ever-present CCTV surveillance of public areas, since it will only affect criminals.

As well as those who claim "If it helps catch criminals then it's worth it", even after it's shown that they arn't actually much use. They are also unlikely to understand that there may be an optimal level of CCTV for catching criminals, adding "more" may even make it less useful.
IMHO it's a great pity it generally dosn't work to have such people drink themselves to death after being told that "alcohol in moderation can be good for you".

Re:Can we be a little more inclusive?

[TomorrowPlusX]

The last time I flew ( note: I'm an American citizen born in the US, and it was a flight inside of the US ) when the plane was about to leave the boarding area for the runway, one of the flight attendants loudly called out "$REAL_NAME, identify yourself!".

(I have an eastern-european muslim first name, shared with a recently deceased chechnyan terorrist, and my last name is shared with one of the 911 guys. Go me. )

So, I politely said, "Here I am, is anything wrong?". She came over, and gave me the stink eye. Asked, "Where are you headed?". "Home, washington DC". She asked to see my ID. I showed her.

She asked if anybody was with me. My girlfriend ( a cute korean lass ) says "Me, we're going home together." The stewardess looks at her, gives us both the stinkeye, and says "Fine", and walks way.

I'm fucking tired of this shit. It's racism, pure and simple. It serves no benefit to anybody. If I were a terrorist, would I for fuck's sake use my real name and id? Jesus. Fucking. Christ.

End rant.

Re:About time.

[np_bernstein]

"Post hoc ergo propter hoc"

http://www.infidels.org/library/modern/mathew/logic.html#posthoc [infidels.org]

eg: "The Soviet Union collapsed after instituting state atheism. Therefore we must avoid atheism for the same reasons."