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Challenge To US Government Over Seized Laptops 246

Posted by samzenpus
from the we-the-computerless-people dept.
angry tapir writes "The policy of random laptop searches and seizures by US government agents at border crossings is under attack again: The American Civil Liberties Union is working with the National Association of Criminal Defense Lawyers to find lawyers whose laptops or other electronic devices were searched at US points of entry and exit. The groups argue that the practice of suspicionless laptop searches violates fundamental rights of freedom of speech and protection against unreasonable seizures and searches."
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Challenge To US Government Over Seized Laptops

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  • by QuoteMstr (55051) <dan.colascione@gmail.com> on Thursday January 14, 2010 @09:10AM (#30763012)

    How many other exceptions do you plan to make?

  • by Dunbal (464142) on Thursday January 14, 2010 @09:13AM (#30763032)

    we should have a holding bay at each border and run blood tests

          Remember that some tests, like those for HIV, can take up till 6 months before the chance of false negatives are eliminated. I therefore suggest a period of quarantine in an isolated cell for at least 6 months for all travelers.

  • by Golddess (1361003) on Thursday January 14, 2010 @09:16AM (#30763046)
    Considering the ease with which you can send information without having it physically stored on the laptop, any search that goes beyond determining that the device is, in fact, just a laptop is just a waste of taxpayer money.
  • by bill_mcgonigle (4333) * on Thursday January 14, 2010 @09:29AM (#30763128) Homepage Journal

    Aren't border crossings an exception to the Fourth Amendment, or rather, a circumstance where any search is considered "reasonable" by default?

    I don't see that in the plain and clear text of the Fourth Amendment restrictions.

    Citizens rights are not to be abridged, full stop.

  • by Darth Sdlavrot (1614139) on Thursday January 14, 2010 @09:34AM (#30763174)

    The US Government is constrained by the Constitution.

    The 4th Amendment to the US Constitution doesn't say "...except at border crossings."

    If you want to argue that a search at the border might not be unreasonable, that's a different argument, but per se, the US Government does not have any special right to conduct searches at the border.

    My rights, as a US Citizen, WRT the US Government, extend around the world. They aren't suspended just because I'm at a border crossing.

    IANAL, obviously.

  • by Opportunist (166417) on Thursday January 14, 2010 @09:38AM (#30763206)

    It is impossible to stop the transfer of a key past border security. After all, you can retry as many times as you like, all you have to get through is a single key. Not to mention that you could simply publish the public part of a PGP pair.

    I still didn't figure out what the search is about. I only know that it's not about terrorism.

  • by IndustrialComplex (975015) on Thursday January 14, 2010 @09:40AM (#30763224)

    Aren't border crossings an exception to the Fourth Amendment, or rather, a circumstance where any search is considered "reasonable" by default?

    Says who? No really, consider the source of that claim.

    Just because the government says something, or even when the government DOES something, that doesn't mean what they say or do is Constitutional.

  • by cbhacking (979169) <been_out_cruising-slashdot&yahoo,com> on Thursday January 14, 2010 @09:40AM (#30763228) Homepage Journal

    No, but you've entirely missed the point. The idea here is that lawyers represent a group of individuals who routinely carry sensitive data and stand to take substantial financial harm if it is seized ("without good reason" being implied here). As an added bonus, lawyers typically have money to fight things like this.

    Basically, lawyers have a lot to lose if unreasonable laptop seizures continue, and they have the resources to fight it. There's no implication that they would try to get an exception for lawyers specifically, which seems to be what you thought the GP was talking about; rather the point is that the ACLU needs people who will fight this case for the sake of everybody, and lawyers can do that.

  • by Darth Sdlavrot (1614139) on Thursday January 14, 2010 @09:43AM (#30763246)

    Do you honestly expect us to believe that you don't have backup copies of your work on a USB drive or on a file server somewhere where you could download it, should such a need arise?

    Sure, it'd be an expensive nuisance to replace it if your laptop is one of the microscopically small percentage that are seized; but if that's where the only copy of your life's work resides, then you're a fool in more ways than one.

  • by Shivetya (243324) on Thursday January 14, 2010 @09:43AM (#30763248) Homepage Journal

    Wasn't that the result of a "so and so bill of rights" which is the favored naming of new rules passed by Congress which only seem to allow government agencies to abuse me? I mean, it seems each time I get a new Bill of Rights I spend more time under the thumb of some government or business.

    I guess I can now plan around such outrages, knowing how long I will be without needed personal or business data, how long I will be required to sit in an office/detention/airplane/etc.

    I wish they would quit codifying my rights and obey the ones that were supposed to be inalienable from the get-go

  • Re:Policy document (Score:3, Insightful)

    by ElSupreme (1217088) on Thursday January 14, 2010 @09:46AM (#30763282)
    Just because he *probably* wont remember. And *probably* won't do anything about it. And it *probably* won't be a violation of your rights. DON'T MEAN YOU SHOULD BE COMPLACENT!

    It can be all three, and if you let it be that way for a while you won't be able to say anything when those things start happening.
  • by TheGratefulNet (143330) on Thursday January 14, 2010 @09:48AM (#30763306)

    They aren't suspended just because I'm at a border crossing.

    they are. and they are in EVERY country. they all 'like' this. they will not give this 'rule' back.

    sorry to inform you but the world IS run by a bunch of power hungry sick-os. aka, politicians. they DO think like this. no, they are not tech/scientists like we are. they don't think like us. they use anti-logic when making laws.

    sucks, huh?

    welcome to the non-disney real world. watch your step.

  • by 91degrees (207121) on Thursday January 14, 2010 @09:51AM (#30763338) Journal
    But if nobody is going to prevent the government agents from violating the constitution, then it doesn't make much difference what the thing says.
  • Re:Policy document (Score:5, Insightful)

    by IndustrialComplex (975015) on Thursday January 14, 2010 @09:55AM (#30763376)

    The officer searching you probably searches thousands of people a day. It's not like he's going to go through your data files and memorize all the important business/legal documents and then report them to your competitors. The policy document indicates that all electronic searches take place in your presence and with a supervisor present.

    Allow me to introduce you to the basis for the majority of my privacy opinions: "Lack of feasibility to infringe on a large scale does not make the initial power just."

    Or in simple terms: "Just because they can't now, doesn't mean they won't later."

    What you have is a herd mentality that follows the same logic as, "That wolf can't eat all the sheep". If I give ONE person in the country the authority to execute unwarranted searches at their whim, simply because they cannot search EVERYONE does not make the authority I granted just.

    ALWAYS consider the way in which a power may be abused, because eventually, it will be.

    Thirty years ago if you suggested that the government could monitor and process all of the phone conversations in the United States simultaneously it wouldn't have been possible. However, with conversations being digitized and the development of new technology, it is becoming possible, and in 20-30 years? Just because they can't now, doesn't mean they won't later.

  • by Anonymous Coward on Thursday January 14, 2010 @10:08AM (#30763464)

    The only things exempt from search at the border are diplomatic pouches.

    hmmm, reread the 4th amendment several times and never saw that...

  • by QuoteMstr (55051) <dan.colascione@gmail.com> on Thursday January 14, 2010 @10:17AM (#30763554)

    Don't confuse is and ought.

    Are you suggesting that we merely resign ourselves to that fact borders are rights-free zones, even if that's not the way the world ought to work? In that case, you're a coward.

    Or are you suggesting that our rights ought not to apply at the border for some a priori reason? Can that reason distinguish between rights at borders and rights inside a country? Or better searches and arbitrary detentions? The kind of reasoning that leads someone to believe arbitrary searches are acceptable inevitably leads him down the path to endorsing a nightmare police state.

    If that's you, then you're an enemy of modern civilization.

    So which is it?

  • by TheRaven64 (641858) on Thursday January 14, 2010 @10:19AM (#30763580) Journal

    The US Government is constrained by the Constitution.

    The US Government, like any other government, is constrained by what its citizens are willing to allow it to do and what they are able to prevent it from doing. The constitution is a document detailing what the founders of the country thought the citizens ought to permit the government to do. The will of the citizens can be expressed through elections, through the courts, and through passive or violent rebellion. The first two options are not available in a large proportion of the world, and it is important to use them actively and responsibly in the parts, such as the USA, where they are.

  • by TheRaven64 (641858) on Thursday January 14, 2010 @10:23AM (#30763630) Journal
    Absolutely, and even without the the risk of confiscation, flying is one of the times when a laptop is most likely to be lost or damaged. Run a backup before you leave, run an rsync (or whatever) update before you go back.
  • by TheGratefulNet (143330) on Thursday January 14, 2010 @10:24AM (#30763652)

    (what's all that BS about?)

    all I'm saying is that in the real world, your ideals and values mean NOTHING. when some gov official is raping your rights, you have NOTHING you can do about it.

    nothing.

    this is the powerless that we all feel as being part of the modern world.

    nothing you can do about it, either. nothing.

    sorry to break it to you but MANY things in this world are really really wrong and nothing you can do about it. your youthful ideals won't help you. just accept it. life has MANY things like this that you cannot fight or win.

    do I like this? HELL NO. but I live in the real world.

  • by khallow (566160) on Thursday January 14, 2010 @10:29AM (#30763696)

    Given that, is it worth the sacrifice to human rights to keep doing it?

    NO. My view is that unless the law enforcement officer has a reasonable expectation that some criminal activity is going on, they shouldn't have the ability to seize data or search laptops. This includes customs agents.

  • by selil (774924) on Thursday January 14, 2010 @10:31AM (#30763722)
    I think it is funny that people say "you don't have those rights at border crossings", and yet that isn't even the government contention. The government believes that laptops and other electronic devices are open containers that can be examined at will after they've been seen. In other words if this stands as a principle and you're walking down the street and they can see your iPod they (meaning police) can seize and examine the iPod. This is a principle of incremental legislation and enforcement. Case studies of similar expansions are found in seat belt laws, and punishment for driving under the influence. As to people saying you don't have the rights accorded to the Constitution when crossing borders they are completely wrong. Administrations have held that point of view. They have also held that your rights (and responsibilities) apply wherever you are found. So, you have those rights, but can be charged for crimes from the United States even when where you are the incident is not illegal (e.g. child porn, gambling, etc..).
  • by thue (121682) on Thursday January 14, 2010 @10:40AM (#30763846) Homepage

    So if the US government were to kill a US citizen outside the US, the US government would not be liable in a US court? Of course it would be illegal!

    Same with unreasonable searches and seizures at border crosses.

  • (what's all that BS about?)

    all I'm saying is that in the real world, your ideals and values mean NOTHING. when some gov official is raping your rights, you have NOTHING you can do about it.

    nothing.

    this is the powerless that we all feel as being part of the modern world.

    nothing you can do about it, either. nothing.

    sorry to break it to you but MANY things in this world are really really wrong and nothing you can do about it. your youthful ideals won't help you. just accept it. life has MANY things like this that you cannot fight or win.

    do I like this? HELL NO. but I live in the real world.

    Maybe we could, I don't know, sue the border agents and the executive branch of our government, so that MAYBE the judicial branch will strike down these acts, or at least limit them, as unconstitutional and give us some case law on the matter. You know, kinda exactly like what the ACLU is trying to do here.

    Nah, that's just too hard! We should all just resign ourselves to accept the inalienable and indisputable fact that the federal government is in absolute control and there is nothing we can ever do. That definitely sounds better. /sarcasm

  • Obviously, if you leave one country, but haven't entered the next country, you are in the Borderlands. We should all enter the Borderlands and set up a government there. You know, that 100 sq ft area considered "not past customs". But wait . . if we try to do something like that, the other governments would say that it is their land, and they have jurisdiction there . .. so that land really is part of that government . . . so the constitution should apply . . .
  • The government has the authority to do many things in a legal manner. No one is arguing that. No one is even arguing against searches and seizures at the border. The argument is against the illegal searches and seizures (no probable cause, etc) that is occurring.
  • by QuoteMstr (55051) <dan.colascione@gmail.com> on Thursday January 14, 2010 @11:13AM (#30764336)

    As George Bernard Shaw famously and pithily put it:

    The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.

  • by Anonymous Coward on Thursday January 14, 2010 @11:17AM (#30764420)

    Its not just the US doing this. The UK has been doing it as well

    http://news.bbc.co.uk/2/hi/science/nature/150465.stm [bbc.co.uk]

    All countries have the right to do any type of search they want at a border crossing. Thats how they protect their country.

    The US government doesn't have any rights. "We the people" have rights.

  • by bill_mcgonigle (4333) * on Thursday January 14, 2010 @11:26AM (#30764588) Homepage Journal

    Don't let the lawyer thing get in your way - the US Constitution is meant to be read and understood by average citizens. Any interpretation that requires judicial contrivances is bound to be wrong.

    The US Government, as constituted since the 1960's has claimed that the 4th Amendment does not apply in many circumstances. That in no way affects the original meaning, only the validity of the current government.

    For instance, it claims that government agents are authorized to stick their (perhaps gloved) hand up your ass if they have "reasonable suspicion" but no warrant.
    You wouldn't want to get between Aaron Burr and such a bureaucrat.

  • by Anonymous Coward on Thursday January 14, 2010 @11:35AM (#30764774)

    I'm glad our founders weren't as defeatest as you.

  • by Proteus Child (535173) on Thursday January 14, 2010 @11:52AM (#30765132) Homepage
    There is a minor point being missed here: what's stopping them from misusing the data they find on confiscated laptops and storage media? What prevents them from using seized information from filling out their social network maps for "people of interest" (for some definition of 'interest') or finding new people to keep a close eye on? Also, because an unknown volume of the stuff they confiscate and never return winds up sold off in lots on eBay (remember the huge lots of pocket knives, cuticle scissors, knitting stuff, and other bric-a-brac from a couple of years ago), what is to stop people from buying lots of (say) confiscated USB keys and external drives and rifling through them for usable or saleable information?
  • by Anonymous Coward on Thursday January 14, 2010 @11:58AM (#30765252)
    As an example to back you up, take a look at the Foreign Corrupt Practices Act [wikipedia.org]. US citizens are held accountable to at least some US laws while outside US territory.

    Mij
  • by Gilmoure (18428) on Thursday January 14, 2010 @12:03PM (#30765360) Journal

    Hey, man, life is hard and it sucks so just bend over and take it. And don't whimper if there's no lube. Just live in the 'real' world. George the Third, just let him tax you with no representation. He's the real world and there's nothing you can do about it.

  • by david_thornley (598059) on Thursday January 14, 2010 @12:26PM (#30765732)

    The Fourth Amendment does say "unreasonable". The US Congress has decided that border searches are reasonable, and the US Supreme Court has (IIRC) agreed with that. There's a bit of a loophole in the Fourth. It lays down certain criteria for a warrant, but doesn't say a search needs a warrant. The US government is free to define criteria for reasonableness; for example, a law enforcement officer may under some circumstances search an area to see if there's a weapon that a given person might be able to reach.

    The only Constitutional question is what is reasonable or unreasonable.

  • Sure, it'd be an expensive nuisance to replace it if your laptop is one of the microscopically small percentage that are seized; but if that's where the only copy of your life's work resides, then you're a fool in more ways than one.

    Where to begin with this...

    First - the principle should make your entire "argument" moot. If his laptop was not seized unreasonably in the first place, then the rest of the discussion would be unnecessary. Your argument is based on the foundation that these seizures are acceptable to begin with, but you've provided nothing to support that assumption.

    Second - one man's "expensive nuisance" is another man's livelihood. Even more so in this DRM'd age, when software is tied to specific machines -- on my development box I have over $10k in legitimate software that I require, but much of it can't be moved to another machine without major hassle - and some can't be moved at all.

    Third: IP concerns. You have no idea what happens to the data on these machines. Government officials are people too. While I don't think the government as a whole is going to turn around and do something evil with my data, I have no such confidence in the individuals employed by the same government. There are also very real concerns about things like trade secret agreements (providing the data on my system to ANYONE would cost me a huge amount of money) and contractual obligations (clients don't want to hear that the government stole my laptop - so that would cost me money too).

    Do you honestly expect us to believe that you don't have backup copies of your work on a USB drive or on a file server somewhere where you could download it, should such a need arise?

    Well that just takes care of any possible problem associated with this behavior, doesn't it?

  • by Anonymous Coward on Thursday January 14, 2010 @12:57PM (#30766326)

    The US Government, like any other government, is constrained by what its citizens are willing to allow it to do and what they are able to prevent it from doing.

    That's really the essence of the situation. The piece of paper really is just a piece of paper if the people don't believe in it. If the people said (for real in voting booths, not just in internet blogs) they wanted border policies to change, then border policies would change.

    But when you get right down to it, most of us don't cross the borders very often, so at the detail level, it's just not a big issue. And in the bigger picture, people don't vote for liberty in general. Liberty is way down the list, below ephemera such as

    • We want other people to pay for things (e.g. health care, retirement, even energy)
    • We don't want our politicians cheating on their wives, saying awkward or insensitive things when a mic is on, and we want them to wear a tie
    • We want them to reassure us about things we're scared of

    and so on. That stuff is way more important than the vague, distant idea behind the 4th amendment, and we assert so, every 2 years.

  • by gknoy (899301) <gknoy@anasazi s y s t e m s .com> on Thursday January 14, 2010 @01:26PM (#30766840)

    If you are going to a conference, consider bringing your data on DVD (multiple ones perhaps), and then mailing your computer to your hotel (and back). Insure it, whatever, but it's probably more likely to get there unmolested.

  • by Saxerman (253676) * on Thursday January 14, 2010 @03:18PM (#30768936) Homepage

    A lot of the idealists are going to give you shit for holding this position. They have their reasons, and some of them might even be good ones, but let's skip that for now. If you're a realist or a pragmatist, their idealism probably isn't going to do much for you. And I get where you're coming from. Here in the US, we have a large number of disenfranchised voters who feel exactly the same way as you. And the Powers That Be really like it that way, since less voters means less work buying elections.

    On the plus side, votes do seem to count. If you look at the ridiculous amounts of money being spent in US politics on campaigns, that should be prime evidence of the power of the vote. The problem, of course, is in who holds that power. Voters cast their votes for a great many reasons, and some of those reasons have been fairly easy to subvert.

    The cure for this problem is not simple, and it is not easy, and I don't blame you for not wanting to help. A great many good people will likely need to stand up and serve jail time and worse in acts of civil disobedience to try and change things. Getting people to stand up and take notice to what is going on around them, and not just passively tune out discussions of politics and social justice will be a major challenge by itself. Getting people to believe in change, and to believe in a better way of social governance, and actively participate in politics... that does seem pretty impossible. And if that dream were to ever come true, and we did 'fix' things, it would carry with it a good of different problems.

    But I have some good news. It only feels like there is nothing you can do about it. The bad news is that there are powerful forces at work trying to make sure you always feel that way. Of course, it has pretty much always been up to you how you want to feel about that, and what you want to do about that. Rather than passively accepting that things suck and committing yourself to the belief that it will never change, even something simple like trying to engage people in discussions on political issues can help. The more minds like yours that we can even open to the possibility of change can only help.

    Of course, change is not without risk, and getting your hopes up is a good way to see them dashed to pieces at your feet. But, you already know how it is. This is the real world.

  • by Obfuscant (592200) on Thursday January 14, 2010 @04:36PM (#30770252)
    It's too bad they used the word "unreasonable" rather than "unwarranted".

    Well, that's one opinion. Mine differs. They used the correct word, I believe.

    However, the implication seems to be that they can't search without a warrant:

    No, the implication is that they can't make unreasonable searches, because they did choose to use the word "unreasonable" instead of "unwarranted".

    The visual search the cop makes of a car as he approaches a roadside stop is perfectly reasonable but there is no warrant, and it is ridiculous to think that a warrant should be required. The pat-down he uses to check for weapons is just as reasonable although arguably so.

    That doesn't sound to me like border searches are legal, but I'm a nerd, not a lawyer.

    That's why you should use the same word the founders did ("unreasonable") and not replace it with a different one.

    The fact that so much truly illegal stuff is caught by border searches makes it hard to argue that searches conducted at the border are unreasonable. The fact that a lot of the illegality is import related makes it hard to argue that searches at the point where import takes place is unreasonable. And, of course, once you get caught in one lie or raise suspicion, the "unreasonable" argument goes away.

    That said, since the intent of the search of laptops is to find illegal "information", and that possession and not import is usually the crime, it can be argued that searching laptops is unreasonable. Further, since the search involves confiscating the object, it's even easier to argue unreasonableness. To use a car analogy, if the visual search of your vehicle at a traffic stop required towing the vehicle to the impound lot so a professional could look at it, it would be clear that the visual search would be unreasonable.

  • by LrdDimwit (1133419) on Thursday January 14, 2010 @07:01PM (#30772352)
    Clear and plain? Not at all, given that the amendment uses the word "unreasonable" without providing any definition whatsoever as to what precisely is, or isn't, reasonable. The people are only protected against "unreasonable" searches without warrant. And before you say "no warrantless search is ever reasonable" consider the case of an on-duty cop who personally witnesses a crime in progress where every second counts (say, someone breaking into a house with a sledgehammer, or throwing a gagged child into the back of a van).

    Given that clearly some searches are reasonable, even without a warrant, it isn't a question of "if" warrantless searches are ever OK, but "when" they are. And the Supreme Court has said, basically, that keeping contraband out of the country is enough of a good reason that warrantless border searches are "reasonable". You can disagree with the particular result, but this is not at all a black and white issue.

    I continue to be amazed at how terms that only appear on the surface to be unambiguous and perfectly clear, actually hide seriously thorny issues of interpretation. If you've ever worked from a requirements document and tried to implement something that seems to be clear, until you start coding, it's basically the same thing.
  • by shutdown -p now (807394) on Thursday January 14, 2010 @10:41PM (#30774568) Journal

    Nonetheless, the WA court had specifically singled out "people" in the text of the Second Amendment, and based its judgment on that alone, not on whether it is a natural right or not. I think it would be reasonable to assume that the same court, at least, would then consider the word "people" to have the same meaning in the context of the Fourth Amendment, if it was ever asked to rule on it.

  • by polle404 (727386) on Friday January 15, 2010 @06:06AM (#30776830)

    well, if I'm not _in_ the US, then US Customs, TSA etc. does not have jurisdiction, and are thusly not permitted to conduct any searches?
    But, on the other hand, if they _do_ have the jurisdiction to conduct a search, then I must be on US soil?

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