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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 mangu (126918) on Thursday January 14, 2010 @09:01AM (#30762966)

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

    • Re: (Score:2, Funny)

      by hellfish006 (1000936)
      why should any search be "reasonable" at a border? Maybe to help cut back on the spread of diseases we should have a holding bay at each border and run blood tests. We could deem them biological weapons until proven otherwise!
      • Re: (Score:3, Insightful)

        by Dunbal (464142)

        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 dkleinsc (563838) on Thursday January 14, 2010 @09:23AM (#30763084) Homepage

        Electronic information sent without having it physically stored on the laptop will get picked up by the NSA in room 641A [wikipedia.org] as a matter of routine.

        Of course, that's easily gotten around as well: you use an encrypted connection with a key transferred via non-intercepted means, but that's the theory which those who want a police state operate with. There's a reason the original attempt at this sort of routine searching was named "Total Information Awareness".

        • 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.

        • Re: (Score:3, Informative)

          by joeyblades (785896)

          If I wanted to smuggle/hide information and I was paranoid about the security of electronic transfer, my humongous laptop is NOT where I would keep it. I would choose something more the size of my pinky fingernail...

          With the advent of 32GB microSD flash, it's easy to move lots of data undetected... at least until they train flash sniffing dogs.

    • by corbettw (214229) <`moc.oohay' `ta' `wttebroc'> on Thursday January 14, 2010 @09:17AM (#30763058) Journal

      Historically, that's been true. But the reason for that is to prevent contraband from coming into the country. With the advent of the Internet, anyone can download anything from anywhere. So searching laptops at the border isn't going to have any effect, whatsoever, on the flow of contraband digital items (pirated software, kiddie porn, whatever). It might (and has) nabbed a few individuals, but it certainly hasn't had an appreciable effect on the wider practice of these things.

      Given that, is it worth the sacrifice to human rights to keep doing it? That's the question that needs to be answer, IMNSHO.

      • Historically, that's been true. But the reason for that is to prevent contraband from coming into the country. With the advent of the Internet, anyone can download anything from anywhere. So searching laptops at the border isn't going to have any effect, whatsoever, on the flow of contraband digital items (pirated software, kiddie porn, whatever). It might (and has) nabbed a few individuals, but it certainly hasn't had an appreciable effect on the wider practice of these things.

        Not that I'm arguing for bord

      • 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 corbettw (214229)

          I agree with that view. If it's not accomplishing anything, there's no real compelling state interest to override everyone's rights.

    • by Ihlosi (895663)

      Aren't border crossings an exception to the Fourth Amendment,

      Yeah. Kind of like "bed without sheets" is an exception to "bed".

    • 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 Jeremy Erwin (2054) on Thursday January 14, 2010 @09:44AM (#30763256) Journal

        It says nothing about the rights of Citizens, either. If you want to make a "plain and clear text" argument, don't alter the text.

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        • It says nothing about the rights of Citizens, either.

          I didn't intend to make a 14th Amendment argument, rather the antecedent of the people is usually considered to be The People, from the introduction. Just using
          'Citizens' in the colloquial sense, not the formal.

          On a moral justifications ground, though, there's certainly no reason to limit protection of natural rights to participating members.

          • Re: (Score:3, Informative)

            I didn't intend to make a 14th Amendment argument, rather the antecedent of the people is usually considered to be The People, from the introduction.

            It may be so, but the U.S. courts have interpreted "people" more extensively in the past - for example, "the right of the people to keep and bear Arms, shall not be infringed" was considered by a Washington State court to be sufficient reason to strike down a state law prohibiting gun ownership by aliens as non-constitutional - the state is allowed to discriminate by e.g. instituting licenses for non-citizens [wa.gov] where citizens wouldn't need one, but cannot deny the right altogether.

            Similarly, in many U.S. stat

      • by mcgrew (92797) *

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        It's too bad they used the word "unreasonable" rather than "unwarranted". However, the implication seems to be that they can't search without a warrant: "no warrants shall issue, b

        • Re: (Score:3, Insightful)

          by bill_mcgonigle (4333) *

          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 u

        • 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.

          • Re: (Score:3, Interesting)

            by mcgrew (92797) *

            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

            By that logic, the fact that so many people have illegal stuff in their homes (obviously, since residence searches usually turn something up) would allow them to walk into your house for a look around any time they wanted to.

            And, of course, once you... raise suspicion, the "unreasonable" argument goes away.

            That argument sounds completely unreasonable to me. It s

      • Re: (Score:3, Insightful)

        by LrdDimwit (1133419)
        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 int
    • Re: (Score:3, Insightful)

      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 rolfwind (528248)

      Show me that exception in the constitution. Courts have upheld the right to travel, don't see what a border has to do with this.

  • Policy document (Score:5, Informative)

    by bsDaemon (87307) on Thursday January 14, 2010 @09:02AM (#30762970)
    I know that hardly anyone is going to read this (i just found it myself), but before we all go ranting on about this, it might be helpful to actually read the policy document with regards to search and seizure of electronic equipment by the Customs and Border Patrol: http://www.cbp.gov/linkhandler/cgov/travel/admissibility/elec_mbsa.ctt/elec_mbsa.pdf
    • Re:Policy document (Score:5, Informative)

      by jittles (1613415) on Thursday January 14, 2010 @09:30AM (#30763136)

      Looks to me like the document says they can choose to search for any reason and they may or may not have to disclose that search to you and even if they disclose that search they may or may not have to let you watch that search.

      Every single privacy protection in that document had an escape clause that allows them to circumvent that protection in the interest of national security, or some other loophole. That policy document doesn't make me feel any better about the matter.

      • Re:Policy document (Score:5, Interesting)

        by SirGeek (120712) <sirgeek-slashdot&mrsucko,org> on Thursday January 14, 2010 @09:34AM (#30763166) Homepage

        Looks to me like the document says they can choose to search for any reason and they may or may not have to disclose that search to you and even if they disclose that search they may or may not have to let you watch that search.

        I do think that this would apply and most people are not aware of it either:

        Mincey v. Arizona, 437 U.S. 385 (1978). states:

        Any search without a warrant is presumed unreasonable.

        • Re:Policy document (Score:5, Informative)

          by Jeremy Erwin (2054) on Thursday January 14, 2010 @10:04AM (#30763436) Journal

          Mincey quotes Katz v. United States 389 U.S. 347 (1967) [cornell.edu]

          Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [n18] -- subject only to a few specifically established and well delineated exceptions. [n19]

          18. See, e.g., Jones v. United States, 357 U.S. 493, 497-499; Rios v. United States, 364 U.S. 253, 261; Chapman v. United States, 365 U.S. 610, 613-615; Stoner v. California, 376 U.S. 483, 486-487.

          19. See, e.g., Carroll v. United States, 267 U.S. 132, 153, 156; McDonald v. United States, 335 U.S. 451, 454-456; Brinegar v. United States, 338 U.S. 160, 174-177; Cooper v. California, 386 U.S. 58; Warden v. Hayden, 387 U.S. 294, 298-300.

          You can look up the well defined exceptions yourself. More importantly, both Mincey and Katz predate the Rehnquist court, so best Shepardize those citations.

    • by blee37 (1181835)
      Particularly interesting is the following clause indicating that your electronic devices can be searched even if the officer has no good reason to think you are 'suspicious.'

      5.1.2. In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze information encountered at the border, subject to the requirements herein and applicable law.

      I suppose this is the same as the right of officers to open everyone's bags, without
      • Re: (Score:3, Insightful)

        by ElSupreme (1217088)
        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.
      • 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.

      • Re: (Score:3, Informative)

        the policy document most emphatically does not state that the searches take place in your presence.

        you missed the part about how they can seize the information (make a copy) or the device that it is on and search it at an outside location, with or without specialized help (translation, decryption, subject matter assistance, etc.) and only are required to destroy it if it is determined not to contain probable cause to seize it. that is ignoring the fact that they have, in fact, effectively seized it alread

      • by cs668 (89484)

        It's an little bit of a catch-22. They almost have to reserve the right to be arbitrary in their searches for a couple of reasons.

        1. Throwing randomness into the mix makes it harder for a would be bad dude to figure out what triggers a search. So, you have to make random searches allowed.

        2. Throwing arbitrary searches in also helps to make it look look like you are not "racially profiling"

        3. If you had a bad night with the significant other you can wake up this morning knowing you can take it out on wh

    • 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

  • by 140Mandak262Jamuna (970587) on Thursday January 14, 2010 @09:11AM (#30763020) Journal
    I read Challenge To US Government Over Seized Laptops as Challenge To US Government Over Sized Laptops and imagined laptops with 32 inch screens getting stuck at the XRay machines!
  • by dreamchaser (49529) on Thursday January 14, 2010 @09:17AM (#30763056) Homepage Journal

    I would imagine that any search of a lawyer's laptop could potentially violate attorney-client privilege. That may be one reason why they are looking for lawyers as plaintiffs. If the searches are voided on attorney's for any reason then the equal protection clause might take effect and void them for others as well.

    I'm just randomly speculating and no IANAL.

    • Couldn't everyone just claim to have power of attorney for some relative effectively stopping this for "everyone" that makes that claim if found to be voided for attorneys? The general populace being attorneys would definitely not be something the powers at be would like, as it might incite actual education of the laws...

      • by jmauro (32523)

        Power of attorney does not make one an attorney so attorney-client privilege doesn't apply.

        All power of attorney provides is the power to make legal decisions for someone else if they are unable to for what ever reason.

    • by sirwired (27582) on Thursday January 14, 2010 @09:26AM (#30763106)

      When it comes to border crossings, lawyers are not different from any other citizen. The only things exempt from search at the border are diplomatic pouches.

      SirWired

      • by cbhacking (979169) <been_out_cruisin ... NO@SPAMyahoo.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 cenc (1310167) on Thursday January 14, 2010 @10:09AM (#30763472) Homepage

          The state is not allowed, even when exercising a search warrant in a criminal investigation, to simply walk in to an attorney's office and take everything like they do with normal citizens. There are very strict rules that have to be followed in order to protect attorney client privilege (often a third-party attorney is brought in to examin what the police can look at ).

          Often the very nature of an attorney's work is such that even the disclosure that a client is a client (domestic abuse cases, general criminal cases, divorce), can be damaging to clients that have nothing to do with a particular investigation. The State would be trampling the rights of innocent third-parties by just randomly seizing and holding attorney documents whenever they like.

          Those documents have the potential, especially if contractors are hired to examen drives, to fall in to the wrong hands or be put in a position that they can be admissible in to court. More commonly information that is strictly confidential and directly not admissible to court, gets used to find stuff that is admissible in court.

    • Or it could violate my 4th amendment rights a an American citizen!

      I would hope that would be more important than Attorny client privilege.
  • by what about (730877) on Thursday January 14, 2010 @09:35AM (#30763186) Homepage

    I did travel to US a some time ago when things where more relaxed, airport control was reasonable.

    It would be very upsetting and damaging if US border seize my laptop for no reason whatsoever and keep it indefenitely.
    It is important to remember that the laptop is NOT a forbidden item or somewhat illegal, they keep it, just in case.
    If it is the info they are after then just clone the HD and give the machine back !

    On the privacy issue, it is clear that technology is extending our brain in terms of "storage capacity", kind of like a diary but in a way that is beyond a book in terms of search, speed, capacity. To me laptop search is like rumaging into your own mind diary, looking for connections, events, stories. Fair point if you at least have some lead of illicit activity otherwise it becomes just fishing for something, you never know.

    I know that facebook just said that "privacy is over", I just hope we will not have to put up a real fight sooner or later to get our privacy back from our big brother.

    P.S. Regarding catching "terrorists" at border crossing, what about some working intelligence ? Really, how can you trust the government when some many screwup happens so often... why normal citizen cannot record what police do ?

  • by jonwil (467024) on Thursday January 14, 2010 @09:51AM (#30763332)

    There are a few simple ways they can improve the system (and answer some of the criticism) without compromising national security one bit.

    The easiest step they could take would be that anytime they take an item, they have to give you a receipt for it. A simple bit of paper that lists all the items they are taking, doesn't need to say why, just that it was taken by customs and which agent took it and the date and time it was taken.

    • by querist (97166)
      Other countries do this for far less important things. I was crossing the border between Hong Kong and the mainland (yes, they still have standard border crossings there even though they are the same country now) and I was stopped for an APPLE. Not a computer, a piece of fruit. My traveling companion took a few bites of an apple that she brought from the hotel and then wrapped it up and handed it to me to carry for her while we were juggling our luggage. I was stopped at the border and briefly questioned
  • There should be a reason why they go into your laptop as in your bags. If you have no previous record, and have nothing like a bomb swab positive or what not, then it should be like cavity searches, they are not allowed until they have cause, which in this case they seem to want to find it by going into your laptop.

    I have a laptop that has encrypted disk for good measure....they keep it, all I have on there is a few games and some movies, you are telling me that this is reason to keep my laptop....I think t

  • 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 RevWaldo (1186281) on Thursday January 14, 2010 @11:19AM (#30764442)
    Back in the days of DOS, Penn Jillette (of Penn and Teller fame) used to write a computer column. Basically back then all airport security would ask you to do is turn your laptop on, just to confirm that it is a working laptop, and not, say, a laptop packed with C4 where the battery and hard drive should be.

    He suggested that when traveling you should NOT, DEFINITEY NOT put the following in your laptop's AUTOEXEC.BAT file:

    ECHO READY
    ECHO ARMING....
    ECHO ARMED
    ECHO *** DETONATION IN 00:30 ***
    ECHO Press 'x' to abort.
    CHOICE /C:x /T:x,30 > NUL
    ECHO GOODBYE

  • Talk at Shmoocon (Score:3, Informative)

    by tdc_vga (787793) on Thursday January 14, 2010 @11:28AM (#30764648)
    IAAL and here's a presentation [google.com] I gave at ShmooCon and DefCon last year entitled "They Took My Laptop! - 4th and 5th Amendment Explained." The Defcon video isn't available yet, unfortunately, since the content is more up to date. The video goes into a decent amount of depth on the current body of laws in regards to laptop seizures. Anyway, thought it might be of use.

    Cheers,
    T

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