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Appeals Court Affirms Warrantless Computer Searches 390

Posted by Soulskill
from the those-amendment-things-are-optional dept.
suraj.sun writes with this excerpt from ComputerWorld: "Laptop computers and other digital devices carried into the US may be seized from travelers without a warrant and sent to a secondary site for forensic inspection, the US Court of Appeals for the Ninth Circuit ruled last week. The ruling is the second in less than a year that allows the US government to conduct warrantless, offsite searches of digital devices seized at the country's borders. A federal court in Michigan last May issued a similar ruling in a case challenging the constitutionality of the warrantless seizure of a computer at the Detroit Metropolitan Airport. Several other courts, including the Ninth Circuit itself, have ruled that warrantless, suspicion-less searches of laptops and other digital devices can take place at US border locations."
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Appeals Court Affirms Warrantless Computer Searches

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  • by ls671 (1122017) * on Friday April 08, 2011 @12:58PM (#35759694) Homepage

    "Suspicion-less searches" comes in handy

    "We had your laptop searched for no reason, we never suspected you of doing anything wrong..."

    This way, nobody could ever complain of discriminatory treatment based on race, nationality, religion, etc.

    • by lgw (121541) on Friday April 08, 2011 @01:03PM (#35759762) Journal

      Detroit is in the Constitution-Free Zone [aclu.org], so this isn't much of a surprise. It's sad what we threw away in the War on Drugs, and will of course perpetuate in the Wars on Whatever's Handy.

      • Am I blind, or does that map not actually give any information about what rights people in those zones do not have?
        • by Anonymous Coward on Friday April 08, 2011 @01:23PM (#35760060)

          It gives no information.

          This does:

          http://www.aclu.org/technology-and-liberty/fact-sheet-us-constitution-free-zone

          Basically, 99% of Californians are considered to be living "on the border", which is crazy.

          • Why is that crazy? California has a coast, and the coast is the border.
            • by Chris Burke (6130) on Friday April 08, 2011 @02:24PM (#35761028) Homepage

              It's crazy on several levels.

              First, the actual border between the U.S. and international waters is several miles out. The place where water meets shore is not actually the border.

              Second, people living "on the coast" aren't literally on the coast, they are unambiguously on the U.S. side of the border, but "on" in that context means "adjacent to". So it's basically a pun on two different uses of the word "on".

              Third and most ridiculously, the definition of border they are using includes being 50 miles from the border!

              So even if we took the actual land/water line to be the border, and accepted the metaphorical usage of "on" in the phrase "I live on the coast in California".... If you were living 50 miles away from the coast, you wouldn't say "I live on the coast"! You'd say "I live an hour away from the coast."

              That's why it's crazy.

              • First, the actual border between the U.S. and international waters is several miles out. The place where water meets shore is not actually the border.

                Right. It's 12 nautical miles (22 km). [wikipedia.org] If my imaginary geography of California is correct, the 12nm of the east side of that 100 mile strip is largely unpopulated coastal mountain region, thus having no large effect on the number of people in the "constitutionless" zone.

                Second, people living "on the coast" aren't literally on the coast, they are unambiguo
                • by Chris Burke (6130)

                  The US border patrol operates fixed and roving checkpoints as much as 100 miles from the nearest border, even on roads that do not cross the border. The fact that you are unambiguously on the U.S. side of the border is irrelevant. You can still be searched and your stuff seized without warrant and now without suspicion.

                  I know, I've gone through those checkpoints. It's irrelevant to them that I'm not actually at the border because they're using a crazy definition of "border", but it's very relevant to the Constitutional issues. That's the whole fucking point!

            • by sleigher (961421)
              I thought we claim that 50 miles out in the ocean is ours too. So wouldn't 50 miles out be the actual border? If 100 miles in is this "constitution-free" zone then it should really be 50 miles. Maybe I am wrong about the water part but that was my understanding.
          • by way2trivial (601132) on Friday April 08, 2011 @02:21PM (#35760990) Homepage Journal

            This is the one to ram the point home!
            http://www.aclu.org/constitution-free-zone-map [aclu.org]

            live in the orange? then this story applies to you!

            they can search whatever the hell they want if you live there.

            no warrant

            no recourse

          • by MartinSchou (1360093) on Friday April 08, 2011 @01:55PM (#35760594)

            Am I the only one who wants the ACLU to publish a map of the revised US map, if you remove the parts that aren't covered by the US Constitution

            • by HTH NE1 (675604)

              And flag, blacking out the affected stars and what stripes correspond to affected states and original 13 colonies respectively. Or make the stars look like cigar burns and the stripes like ash.

            • by dkleinsc (563838)

              Based on the treatment of Wikileaks, the US citizens accused of terrorism, police spying on purely political organizations, etc, etc, it looks like their website already has such a map here [aclu.org].

              Also consider that an international airport qualifies as a border for customs and immigration purposes, so presumably the next argument will be that arbitrary searches are allowed within 100 miles of one.

        • by Kjella (173770)

          Yeah, posting the map alone is rather nonsense. If I remember correctly, it's the zone US custom says they can still halt you and search your luggage and vehicle for customs, without any warrant, or at least the ACLU's interpretation of it.

          In practice, I suspect it's 100 miles from a land border - not the whole west and east coast - and they will probably have seen you cross the border and sent a patrol out to search you. But in a literal reading of the law, neither is a requirement. In principle they can s

          • by jbengt (874751)
            I have actually had my vehicle searched by customs officials almost 50 miles from the Mexican Border. (they were looking for illegal immigrants in the back of the minivan) And, no, they did not see me cross the border, since I didn't cross it ever in that car.
            What does not make sense to me in that map is that Chicago is considered "on the border" Last time I looked, the Southern tip of Lake Michigan is nowhere near a border.
        • There are no rights in those zones. Those zones will be growing to encompass the entire country, soon.

      • by elrous0 (869638) * on Friday April 08, 2011 @01:55PM (#35760592)

        Considering the way the government is behaving today and the way the courts are acting, I don't think anything short of a Constitutional amendment is going to protect our property against unreasonable searches and seizures. But something like that would probably never get the 2/3 majority it would need in Congress.

        • by Lousifer (979651) * on Friday April 08, 2011 @03:01PM (#35761494)
          I don't think anything short of a Constitutional amendment is going to protect our property against unreasonable searches and seizures

          Why would a new amendment make any more difference than the ones we already have?
        • by Haeleth (414428)

          I don't think anything short of a Constitutional amendment is going to protect our property against unreasonable searches and seizures

          Great idea!

          I would propose maybe the following wording:

          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 b

      • by Spatial (1235392) on Friday April 08, 2011 @01:58PM (#35760642)

        It's sad what we threw away in the War on Drugs

        Yeah, such as a snowball's chance in hell of solving any drug problems.

        Imprisoning a million people for non-violent offences and turning them into hardened criminals isn't exactly the greatest crime-fighting strategy ever devised. Especially when it costs 55,000 USD per person per year. But then why bother trying to improve recividism rates when, with privatised prisons, you have a financial incentive to keep as many people in prison as possible?

  • by Presto Vivace (882157) <marshall@prestovivace.biz> on Friday April 08, 2011 @01:03PM (#35759758) Homepage Journal
    I would not believe this if I were not seeing it.
    • by jvillain (546827) on Friday April 08, 2011 @01:11PM (#35759876)
      I live just a couple of miles north of the US border and refuse to cross the border due to how much personal information I have to surrender and the fact that non-Americans no longer have any legal protections against unreasonable any thing. So yes my tourist dollars are going any where but the US. But I hear your economy is doing fine you don't need to worry about trivial things like jobs.
      • Similar situation south of the border. I hate being sent on business travels to a country that hates my people an treats me like a coke dealer and reserves the right to look at my junk on a whim. So I refuse to carry my own equipment there, insisting on my boss providing equipment on arrival. It works because company laptops aren't personally assigned.

  • How does this differ from warrant-less searches of anything else when crossing US Borders (pockets, glove box, trunk, luggage, etc)?

  • I travel with a laptop for remote access to business stuff, even on holidays (emergencies only, of course). Because of travel to the USA I've specifically bought a EEE that could be confiscated without too much out of pocket expense, but it's a real pain to operate some things on the tiny 10" screen instead of my purpose-bought Dell.

    Does this seriously bother any other /.-ers? Having to double my personal hardware just to accommodate US travel is a pain in the ass for the overwhelming number of legitimate travelers, and there's nothing that couldn't get-into/leave the country via the internet anyway. Seems like there's no benefit at all to this nonsense.

    -Matt

    • by Corporate T00l (244210) on Friday April 08, 2011 @01:12PM (#35759894) Journal

      I travel internationally frequently on business as do many of my friends and colleges. Of the over 50 total trips I'm aware of my circle of acquaintances taking, never once has anyone been stopped for a warrantless computer search. While there are certainly personal liberty concerns related to presumption of guilt/innocence or guilt by association, the practical reality is that unless you're a friend of Julian Assange, you're not likely to ever encounter this.

      And even this friend of Julian Assange was not forced to divulge his encryption key and had his laptop returned. (http://randomchaos.us/hacking/another-hacker%E2%80%99s-laptop-cell-phones-searched-at-border.html)

      So if you are concerned about the potential of these searches, encryption may be a more practical way to feel safer.

      • by MarkGriz (520778) on Friday April 08, 2011 @03:16PM (#35761646)

        "So if you are concerned about the potential of these searches, encryption may be a more practical way to feel safer."

        I'm sure an American Muslim traveling on business with his company's confidential data, encrypted to prevent corporate espionage, feels oh so safe and unlikely to be inconvenienced by a search.

      • by dkleinsc (563838)

        While there are certainly personal liberty concerns related to presumption of guilt/innocence or guilt by association, the practical reality is that unless you're a friend of Julian Assange, you're not likely to ever encounter this.

        Or you look Muslim. Or you just happen to be someone who pissed off a border agent or TSA guard. Maybe in practice it doesn't hit you personally, but when it comes to civil liberties an encroachment on anybody is an encroachment on everybody.

        It's worth noting that the uproar about the backscatter machines really started when wealthier white guys started getting the same sort of degrading treatment that non-white travelers had been getting for years. I certainly noticed the last time I flew anywhere (which w

        • Re: (Score:3, Interesting)

          Last time a flew (last week) I noticed the people being selected for "further screening" seemed to be primarily attractive women traveling alone. I'm sure that was a coincidence as well.
    • Re: (Score:2, Informative)

      by MozeeToby (1163751)

      Just have it shipped to your hotel before you arrive. Notify the hotel to expect a package and hold it for you and you shouldn't have a problem. Which, of course, just goes to show what a ridiculous piece of security theater the whole thing is.

      • by Kjella (173770)

        If they're consistent, that also allows warrantless searches of any postal package - and I think they do. Happened to me once here in Norway, the package had a nice sticker saying opened by customs.

        The best option is just to have a clean machine and download everything over the Internet. Last I checked there was no such thing as digital customs. Security theater doesn't even being to cover how silly this is.

    • I have to wonder how many international conferences are no longer awarded to US cities because of this nonsense. But at least we are winning the war on tourism.
      • every time a site is selected, it should be explicitly pointed out that this is the reason the US was not selected. Be sure to cc the US Chamber of Commerce, and the US Hotel and Airline lobbyists.
    • by Mashiki (184564)

      Considering I live ~1.5hrs from 3 major US border points, 2hrs from 5 border points. I consider the entire thing useless, including one point that is unmanned. Traveling to the US is a pain in the ass, I haven't done it in nearly 3 years. Hell traveling to asia and europe is easier. If they don't want my business, or my tourist money that's fine. Because Japan does even if they require biometric data upon entering.

  • by v1 (525388)

    can someone explain what justification they are offering for this decision? besides what seems to be the only obvious answer of simply allowing the law enforcement to do whatever they please?

    • As someone else above mentioned it's about this: Constitution Free Zone [aclu.org]. They are basically validating that the Constitution Free Zone pertains to computers/data just as much as it pertains to your pockets, bag, car trunk, etc.

      Mind, I don't agree with it and never have but there is a lot of precedence for this. I'd like to see the whole shebang overturned but we're definitely only going to see the digital aspect of it get worse unless all this "close to the border" BS is completely overturned.

    • I'm guessing the justification would be that inspecting your data is merely the electronic equivalent of searching your possessions and your person.

      It is an interesting question: what is the legal status of your data? Is it your "possession"? Can having certain types of data be considered an illegal act? Can possession of data make one dangerous to others?

    • by tlhIngan (30335)

      can someone explain what justification they are offering for this decision? besides what seems to be the only obvious answer of simply allowing the law enforcement to do whatever they please?

      I dunno, the official list will have stuff like "obscene materials" (child porn), terrorist activities, and the like.

      A reason you won't see is "we want your corporate secrets". Industrial espionage - nothing's better than seeing a competitor crossing hte border, seizing his laptop and sending it off the American company

    • by Locke2005 (849178)

      can someone explain what justification they are offering for this decision? besides what seems to be the only obvious answer of simply allowing the law enforcement to do whatever they please?

      Won't somebody think of the children? Law enforcement needs to be able to stop people from importing kitty porn into the states at the border! Because obviously there is no other way to get data into the US than hand carrying it on a laptop! If you are against having your laptop arbitrarily taken away from you at the border, then you must be in favor of child pornography, you pervert!

  • Anecdote (Score:3, Interesting)

    by Anonymous Coward on Friday April 08, 2011 @01:07PM (#35759818)
    I work for a subsidiary of a large defence contractor and we've been told via an IT Security Policy announcement never to keep work data locally on our devices (laptops, phones etc.) when crossing any border. We are to connect to the VPN after we get there and download it if we need it. This is even the case if the whole point of going overseas is to demonstrate an a purely IP-based/digital product. This policy was announced at the start of the year, I wonder if it's related.
  • If you have to travel outside the US, make use of FTP, webmail, etc to move your sensitive data. And own a cheapass laptop that you don't mind getting confiscated.

    • by Hatta (162192)

      If you have to travel outside the US, make use of FTP, webmail, etc to move your sensitive data.

      Yeah, cause that's secure.

  • by Hatta (162192) on Friday April 08, 2011 @01:11PM (#35759866) Journal

    Then the Constitution needs to be fixed.

    • by stonedcat (80201)

      Don't worry, it's not, but the Constitution has been deemed a threat to national security and as such has been demoted in level of importance.

    • Then the Constitution needs to be fixed.

      I think your/their constitution has been "fixed" a few too many times already.

  • The problem is people who are still prepared to travel to the USA. You are the ones making this acceptable. You are the ones happy to bring your productivity and your coin into a country which should be ostracised until it stops treating visitors as criminals and returns to something resembling reasonable.

    I gave up my business interests in the US following their slow bastardisation of the notion of rights after 2001. I made a personal loss, but I feel all the more human for it. And it serves its purpose. Af

    • by gfreeman (456642)

      Oh, but I am. And I agree about the feel more human. Oddly, I've never felt more human since I moved to Canada from the UK. It's not perfect, but I feel I have more of a say and that the politicians are less slimy. Alas, that is changing too though :(

  • by Anonymous Coward on Friday April 08, 2011 @01:12PM (#35759884)

    Someone can correct me if I'm wrong, but before we all start quoting 1984...hasn't this kind of search always been legal in the United States?

    "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration...Authorized by the First Congress (1789)"

    http://law.onecle.com/constitution/amendment-04/18-border-searches.html

    • Yes, but for data, it doesn't seem to make much sense since the same search doesn't occur for data that travels over the border. All I have to do is wipe my drive before I enter, then pull the data over the net later. Just because it's legal, doesn't mean it makes any sense.

    • Well, kinda (Score:5, Informative)

      by Sycraft-fu (314770) on Friday April 08, 2011 @02:06PM (#35760768)

      So border searches have always been legal. The Supreme Court has ruled before that you've no expectation of privacy at the border, and that nations have the right to secure their borders by searches. This has been pretty uncontroversial for a long time. However the thing is these searches were for security and for preventing smuggling and the like. So what they could do (and did) was check your bags, your car, etc for contraband and/or dangerous items. Then you were on your way.

      Well laptops are different and make two new problems:

      1) They are actually seizing them, with no evidence of anything wrong. In past searches they could look through your stuff for any reason or no reason at all, but if everything was fine, you went on your way. With laptops they claim the right to seize them, and hold them for an indefinite period. That is real different than a search. Imagine if at the border they took your bag and said "We are going to take this off to check. We won't tell you who gets to look at it or when you can have it back. We don't have any evidence there is anything wrong, but we are taking it anyhow."

      2) Computers are like journals, or other personal writings in many ways and those were not searched/copied at the border. So while they could go through your bag and look for drugs, they couldn't take your personal papers, copy them, and read through them. They weren't allowed to pry in to any and every detail of your life, just check for security reasons or smuggling reasons. You can see how a laptop, particularly one that has e-mail stored on it, would be very similar to personal papers.

      That's the issue here. Nobody is saying they can't have a look at the laptop to make sure it isn't a bomb, or hasn't had its innards removed and replaced with drugs. What they are saying is they shouldn't be able to take the laptop, hold on to it for an indefinite time, copy the data, hand it out to other federal agencies and not tell you who, and so on.

    • That searches made at the border

      The point is, that the word border is being redefined to cover places where 66% of US citizens live. Basically this means that officials can seize the personal possessions of most Americans without any legal recourse at all.

      Perhaps you believe that these officials can be trusted. Perhaps that is the case today. However, there is a reason why "malfeasance" is a word in the dictionary.

  • Personally... (Score:2, Insightful)

    by the_one_wesp (1785252)
    I don't have an issue with Constitutional rights being restricted for those who are registered criminals. They broke the law, proved their untrustworthiness and now are having to contend with that... it's called consequences. However, there ARE no such clauses in the Constitution and until such exist this is unreasonable search and seizure, regardless of who the man is, what he's done and what they've found.
  • by Locke2005 (849178) on Friday April 08, 2011 @01:18PM (#35759978)
    "Warrantless" may be necessary; the alternative is to detain people and their laptop for as long as it takes to get a warrant. "Suspicion-less" I have a real problem with; this sounds like an open invitation for agents to exercise their personal prejudices and punish anyone who doesn't kiss their ass. If you are going to confiscate something, you should as least be able to clearly state a reason for doing so.
  • And the Terrorists WON!!!!

    • by blair1q (305137)

      You're just getting that?

      I blame Bill Clinton. If he hadn't been busy getting a blowjob from a fat chick he'd have been able to go to Afghanistan, climb up the side of a mountain with a bowie knife in his teeth, and gut that bin Laden sonofabitch while he slept.

      I also blame W. Actually, I do really blame W. He did more to exacerbate the fear than he did to assuage it. And he did nothing but inflame antiamerican sentiment among Muslims and pretty much anyone else who was watching him start the Iraq war w

  • In this case, Tallman ruled that such transportation is justified because the forensic tools need to adequately search the computers were located at another facility.

    "The border search doctrine is not so rigid as to require the United States to equip every entry point -- no matter how desolate or infrequently traveled -- with inspectors and sophisticated forensic equipment," Tallman said in his ruling.

    In situations where "logic and practicality" may require equipment presented at the border to be transporte

  • about border search being different from search inside the country.

    What it says is

    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.

    Doesn't even say "citizens". Just says "people". I.e., this whole thing about warrantless border searches is and always has been unconstitutional.

    But I don't expect the Alice in Wonderland court to overturn it. They'll just point to the turtles going all the way down and say that's what they've balanced the world on, therefore one more turtle will be fine.

  • by OverlordQ (264228) on Friday April 08, 2011 @01:48PM (#35760458) Journal

    They dont call it the Ninth Circus for nothing

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