ACLU Sues For Records On Border Laptop Searches 337
TechPolitik writes "The ACLU has sued the US Customs and Border Protection agency under the Freedom of Information Act, aiming to obtain records on the agency's policy of searching laptops at the border. Under the policy, the CBP can search through financial records, photos, and Web site histories, and retain that information for unspecified periods of time. The ACLU is arguing that the information is necessary to understand whether the CBP may be violating the Fourth Amendment, which protects against unreasonable and unwarranted searches. The agency has so far not responded to requests for comment."
Re:These peanuts are the BOMB! (Score:4, Informative)
By the way, yes I'm drunk when I posted this. :)
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Re:more info (Score:5, Informative)
Re:It's a search without a warrant. (Score:5, Informative)
It has always been my understanding that the Supreme Court has determined that the border is where the powers of the executive to order searches has been at its zenith.
More precisely, warrants are not required at the border.
So, within that confluence of factors, the searches were probably quite legally acceptable.
Re:It's a search without a warrant. (Score:4, Informative)
My understanding is that any attempt to board a plane or cross a border, implies consent, which makes the searches consensual. If you don't want to be searched, don't try to get on the plane or enter or leave the country.
*I am a Canadian who since the Department of Homeland Security, tries to avoid traveling to the USA.
Re:It's a search without a warrant. (Score:5, Informative)
Oh right, totalitarianism under the rule of the Chinese (who own the US)
Please stop repeating this myth. China doesn't "own" the US. It doesn't even own a majority or even a quarter of the outstanding US debt. Here [optimist123.com] is an interesting pie chart for your consideration. The data is a little out of date (I believe the Chinese have since surpassed the Japanese as the largest foreign creditor) but it shows that the overwhelming majority of the US debt is owned by the US Government itself.
This is what happens when the Government borrows money from the social security trust fund and other such accounting gimmicks. The second largest holder is American citizens and institutions. Foreign creditors account for the remainder, of which China doesn't even have a majority.
BTW, I agree with everything else you said.
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Re:The 4th amendment is only for criminals! (Score:3, Informative)
Re:It's a search without a warrant. (Score:2, Informative)
... it's up to the officers who wish to exercise that power to prove their legitimacy....
BS. It is up to the courts, the Supreme Court specifically, to decide what power the officers are allowed to exercise under the Constitution. Apparently they have decided not to significantly limit the searching authority of customs and immigration officials that country's borders. Apparently, the usual protections against searches do not apply at border entry points.
Re:It's a search without a warrant. (Score:2, Informative)
...that it's an unreasonable search...
Honestly, if they are allowed to search all your luggage, why should they not be allowed to search through your laptop as well? Where does anybody here on /. get the idea that digital information is somehow privileged above real-world goods? If you have such super-secret information, why carry it on your laptop? Put it safely encrypted on a server either in the USA or elsewhere and then access it over a secure Internet connection. For crying out loud, is it really necessary to carry your entire pron collection across borders?
Not necessarily (Score:5, Informative)
What a judge could well rule is that the searches are allowed, but they have restrictions as to what they can do afterwords. This is rather likely. The searches themselves are probalby legal. The supreme court has ruled on the issue of border searches and said that the government has the right to secure its borders and that part of that can be to search a person and their belongings. Their view is more or less that you KNOW you can be searched at the border, so it isn't reasonable for you to assume privacy there.
Ok, but that was back in the day when laptops and such weren't an issue. This was regarding a physical search. So while they can look through your bag for drugs, once they are done with the search you and your belongings are on their way, provided you don't have something illegal.
The problem here is that they are taking laptops, without charge, warrant or even reasonable suspicion, holding them for indefinite times, and refusing to say what they do with them. They won't say what they are looking for, who can get a copy of the data, how long it is retained, when you get your hardware back, nothing. That is rather different than the kind of search the SC said was ok.
So it could well come down that searches are ok, but this kind is not, or that they have to have specific limits on the data they get and so on.
You discover it is like that in Canada. They can search your, and can seize your laptop with a reason. However there are specific limits as to what can be done and how long they can have it, and they are up front about it. You can find them online (which is how I know about them). That's real different from the US where DHS just says "We can do what we want and don't have to tell you anything."
I would predict that is how this will go. The government will be allowed to search you at the border, however they'll be told they can't just grab laptops and hold them forever with no accountability.
Re:It's a search without a warrant. (Score:3, Informative)
Since visiting Japan, I can sleep safely knowing that every western spook archive now has my fingerprint on file.
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Re:It's a search without a warrant. (Score:3, Informative)
It's not for me or anyone else to prove that a given power doesn't exist. it's up to the officers who wish to exercise that power to prove their legitimacy.
Now you're just being obstinate without replying to what I've said.
I'll break it down for you:
1. The Constitution gives Congress the duty to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare"
2. The Congress granted authority to Customs to conduct routine searches and seizures without probable cause or a warrant
3. Customs has been searching and seizing ever since.
The last two big cases were US v Flores-Montano [wikipedia.org] and US v Arnold [wikipedia.org]. In both cases, the border search exception [wikipedia.org] was upheld, as the routine search was not invasive and did not violate the individual's dignity.
In US v Flores-Montano, SCOTUS references an earlier case:
The same Congress that passed the Fourth Amendment
explicitly permitted customs officials to board
ships and vessels "for the purposes * * * of examining
and searching" the ships and vessels and to "examine
the cargo or contents" of those conveyances as they
entered this country.
Act of Aug. 4, 1790, ch. 35, 30,
31, 1 Stat. 164; see 29, 1 Stat. 164 (permitting customs
officials to "examine[]" unloaded parcels and packages
containing dutiable items). This Court has recognized
that the Nation's earliest laws authorized "the examination
of ships and vessels, and persons found therein,
for the purpose of finding goods prohibited to be imported
or exported, or on which the duties were not
paid," and "[t]he search for and seizure of * * * goods
liable to duties and concealed to avoid the payment
thereof." Boyd v. United States, 116 U.S. 616, 623
(1886); accord Maul v. United States, 274 U.S. 501, 505
(1927) (explaining that customs officials had power to
"board and search vessels bound to the United States
and to inspect their manifests, examine their cargoes,
and prevent any unlading while they were coming in");
U.S. Br. 21. Those laws imposed no requirement of
suspicion in order to search. Indeed, Congress in 1799
confirmed that customs officials had the power, "whenever"
they "shall think proper," to search the baggage
of international travelers. Act of Mar. 2, 1799, ch. 22,
46, 1 Stat. 662.2
Is 210 years worth of precedent not good enough?
I have more than fulfilled my burden, now it is upon you to support your position.
I ask again: Can you provide any citations that say Customs is not allowed to search anything at the border?
/With the understanding that searches of a person's body are by definition not routine and are have a higher burden.
Re:It's a search without a warrant. (Score:3, Informative)
And, as has obviously already been mentioned, not all searches require warrants. Terry stops. "probable cause" searches of, say, a vehicle. Exigent circumstances.
Re:It's a search without a warrant. (Score:4, Informative)
Oh, believe me, they weren't replaced. Child molesters are for when you find others' sexuality uncomfortable and need to pass a law against it; drunk drivers are for being able to arrest anyone who drinks or drives (covers lots of cases, and magically allows you to set up police checkpoints wherever and whenever you want); and terrorists are for Dirty Foreign Brown People who have sneakily avoided the other two.
Re:It's a search without a warrant. (Score:5, Informative)
Re:Two words.. (Score:1, Informative)
Border guards technicians have been to recent training on how to spot machines that occasionally have other hard drives. Looking for evidence of other drives in the history, recent files and other "remembered" fields makes it pretty trivial to find out whether you have another drive mounted on occasion and what the content is, or at least filenames are.
So he images your drive and sees e:\pr0n\teens\HotTeenGetsPoundedByDaddy.mpg in the deep recesses of your Windows registry (or in one of those stupid hidden folders that can't be deleted which stores such things in Linux) and now they have a warrant to kick down your door.
Never mind that the video is some gigantic busty college girl with some bodybuilder, it sounds dirty.... pervert. Might even get them a warrant to seize all your electronics.
And you didn't even do anything wrong. Neato!
Re:It's a search without a warrant. (Score:5, Informative)
Listen, our unbridled profits lead to the lion's share of world's medical advances
This is pure, 100% USDA approved genuine horseshit. That it keeps getting trotted out as some ace-in-the-hole to forgive our ass-backwards healthcare system is symptomatic of the ignorance most Americans have of world history. Let's take a look at some of the "big-time" medical advances of the last century, shall we?
The US has certainly had its share of medical contributions, but the most visible (and shameful) has been the commercialization of medicine--pharmaceuticals in particular, and the artificial restrictions on distribution that generate such wonderful, lovely profits.
Re:Very Tricky but pathbreaking area (Score:1, Informative)
If he has "probable cause" he doesn't need a warrant. All he has to do is say "I smell marijuana." and suddenly he has probable cause to search.
I was stopped once by a zealous highway patrolman who asked "When was the last time you smoked marijuana?" Incredulous, I said "Uh, never." He took the "Uh" to mean I was lying and therefore assumed the right to search.
Funny thing, he never showed up in court to explain why he didn't find anything.