US Federal Judge Rules Suspicionless Border Searches of Laptops Constitutional 462
AHuxley writes "The American Civil Liberties Union sought to challenge the U.S. legal 'border exemption' three years ago. Can your laptop be seized and searched without reasonable suspicion at the border? A 32 page decision provides new legal insight into legal thinking around suspicionless searches: your electronic devices are searchable and seizable for any reason at the U.S. border. The ACLU may appeal. Also note the Kool-Aid comment: 'The report said that a reasonable suspicion standard is inadvisable because it could lead to litigation and the forced divulgence of national security information, and would prevent border officers from acting on inchoate "hunches," a method that it says has sometimes proved fruitful.'"
It's even legal for them to copy the contents of your laptop for no reason at all, just in case they need to take a peek later. A bit of context from the ACLU: "The lawsuit was filed on behalf of Pascal Abidor, a dual French-American citizen who had his laptop searched and confiscated at the Canadian border ... Abidor was travelling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by customs officers. Abidor, an Islamic Studies Ph.D. student at McGill University, was questioned, taken off the train in handcuffs, and held in a cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files had been searched, including photos and chats with his girlfriend."
Time for another letter (Score:5, Interesting)
Every time I read about a new attack on the Bill of Rights, I write to my Congressional representation. I also vote to replace my representation since clearly they aren't representing We, the People.
I'm getting tired of writing these letters, yet I'll do it again and remind my "representation" of my position. Anybody else?
Re:Time for another letter (Score:4, Interesting)
And here-in is the problem. The NSA has assuredly more blackmail material on every politician in this country than could ever be had by any investigative journalist or PI. When it comes to shutting down the entire NSA do you think they'd use that? Or just roll over?
Re:Thank fucking Christ... (Score:5, Interesting)
That's the problem. All people entering the USA have no protection as accorded to American citizens. You are treated as hostile unless proven otherwise. In the meantime, all rights are suspended with no expectation of being treated as a human being.
Being a foreigner, I have read numerous times of horror stories happening at the immigration. It's really discouraging to go to the USA even if you have all the best intentions to go there. Good thing I don't have any necessity to go there at this point in time.
At the end, I'm not sure it is helping thwart bad people from entering the USA.
Sigh (Score:5, Interesting)
Constitutional or not, I wouldn't risk it anyway. Please note, I'm an IT Manager - I have nothing to hide - but the machines I use contain information on how to access other machines at my workplace. Providing access to the data on those machines, sited in the UK, is considered a breach of the Data Protection Act in the UK as they hold personal information. It's even a bit more serious than that, as I work for schools.
As such, case law prevents me even revealing those passwords to anyone without just cause or a court order. The penalties apply to ME, not just my employer. There are even cases where even the POTENTIAL to access the data (i.e. giving someone the password, even if they can't use it without being on the right system, etc.) is considered no different to direct and provable access to the data.
My previous employer prevented staff taking data to France because they have a similar law, but it wasn't anywhere near as serious a threat to our ability to control the data under our protection.
So, sorry, I can't take any electronic equipment holding that information into the US whatsoever. Others may interpret the situation differently, but I'm afraid the only interpretation that matters to me are the courts', and they have spoken many times on such matters and fined people heavily for doing so. I'm sure I could "get away" with it a billion times if I tried, but that's not how I conduct my professional or personal life.
As such, I wouldn't even bother to take a computer across the border in America. And given recent revelations, I don't think it wise to just take some hidden / memorised access credentials to the US and then use them when I'm then to - e.g. set up a blank / hired laptop.
Honestly, this is something I factored in when I was considering emigration many years ago. America pretty much ended up a no-go for me because of the attitude towards foreigners, and their casual approach to data, and their failure to sign many of the same agreements that all EU countries signed up to with regards data usage.
I wouldn't even bother to go there on holiday again - did it once, but now I wouldn't be able to take my laptop or my smartphone with good conscious as both contain encryption and access credentials that although if law-enforcement NEEDED them, I would provide, I do NOT expect law-enforcement to store it longer than necessary, duplicate it, or fail to provide assurances on the security of that data while it's in their possession. That's all you need to do - not even stop collecting the data, just tell me what you can and won't do with it so that I can take that piece of paper to a court (if it ever comes up) and say "Look, here's the assurance I was given when requested to hand over data by law enforcement - not my fault the data got into the wild" - even then, the case law says I'll still get fined but I think I have more of a chance of having the case swing my way under "reasonable efforts" to protect that data.
When you take my phone and laptop away, that cripples my ability to store my documentation (even my flight tickets), research my destinations, book hotels, navigate to places, etc. and I see it as unnecessary. So, basically, even as a place for a quick holiday, it's out of bounds.
And although the places I work for aren't the poorest, they aren't the richest either - so faffing about with blanked laptops is just too much shit to put up with.
Sorry, US. When you treat me like a prisoner, or an alien, with zero human rights, I don't want to be near you - like the bully in the playground. Have fun playing on your own.
All for the sake of a proper receipt, with some assurances that you won't just splurge my (and my employer's) private data onto the net the second I walk out the door...
I don't travel with notebooks which matter. (Score:4, Interesting)
I don't take notebooks I care much about when travelling so I've no concern if they get banged about or stolen. It's so easy to wipe and reinstall before travel that one should do that if you don't want your goat porn viewed by the Stasi.
I'm not worried about Uncle Sugar reading anything I have because I don't do anything interesting to the State and if I did I'm not stupid enough to want to use a computer for it. AT ALL.
If for some reason I had to carry vital legal-but-proprietary commercial information it takes little effort (well, on Thinkpads anyway) to stash a MicroSD card temporarily glued under the label of a WLAN card or a section of heatsink. Don't bring a screwdriver with you as they are cheap at chain stores.
Re:Thank fucking Christ... (Score:5, Interesting)
This is a pretty flawed analogy when it comes to digitial information. There is nothing on a laptop or smartphone that can't be sent in and out of the U.S. on a digitial network and bypass border inspection entirely, especially if its encrypted.
If they want to do a physical inspection to insure there is no contraband in the device, preferably while the owner is watching, that's fine. Imaging the digital contents of the device, copying your contacts, email and phone history is pretty much invasion of privacy and targetted harassment.
There is also a high risk that while they have your devices they will install spying hardware or software so once you get your device back you can no longer trust it.
Many multinationals simply wont let travelers carry anything important across borders any more. Its safer to transfer it digitally over networks and have the traveler pick up their gear and data in country.
One thing I've realized of late is that everything the U.S. has been accusing China of doing, with self righteous indignation, the U.S. has been doing too, usually better and more zealously.
The U.S. and U.K. are pretty far down the road to becoming xenophobic, pariah states. Its an extremely unwise path to choose, especially if you want a healthy economy. Its reaching the point that anyone who has a choice will refrain from engaging with them in economic, academic and scientific endeavors. If you are well educated, skilled entrepenuer or acadamic you would have to be a little nuts to want to work or study in the U.S. or U.K. these days.
Its sad that the U.S. and U.K. have self inflicted more damage on themeselves and their citizens than terrorist attacks could ever have dreamed. That is the whole idea behind terrorism, the reaction and countermeasures are usually more damaging to the target than the actual attacks.
Re:Thank fucking Christ... (Score:2, Interesting)
Being a foreigner, I have read numerous times of horror stories happening at the immigration. It's really discouraging to go to the USA even if you have all the best intentions to go there. Good thing I don't have any necessity to go there at this point in time.
One nice thing about flying to the US, from Canada, is that US Customs has operations at major Canadian airports.
So if you're at (say) Toronto Pearson (CYYZ), you're "pre-cleared" by security and customs, and then the flight is treated as it was a domestic one. If US Customs doesn't want to let you in, you can just drive home. That doesn't work coming to the US from most other countries (though there is pre-clearance at Shannon, Ireland).
It's actually less hassle at airports than road or train crossings in some ways, as with the latter you're on US soil, and so can be detained (as per the article/summary).
Re:By definition, it's therefore gratuitous (Score:4, Interesting)
My only quibble with Heller is that fundamentally only individuals can have rights; governments, or any collectivist formulation, have only have persuasive or coersive power.
How about the right to due process, should the government have the right to arbitrarily hand out fines or seize assets and property just because they belong to an organization or company? I think most of these rights need to be transitive, you're not getting due process until the organizations you are member of or corporations you're a shareholder of also get due process. But then again I find the civil forfeiture laws wildly unconstitutional, how can you have "The right of the people to be secure in their (...) effects against unreasonable (...) seizures" when the government can grab them on the slimmest of excuses and demand you counterprove wild speculation? So yeah we could start by restoring indiviuals' rights.
Re:Time for another letter (Score:5, Interesting)
This. I've gotten email responses that were the exact opposite of what I was writing about. In particular, when I wrote to my congressman against draconian copyright regimes (including my role as owner & developer of a small software business), the response was that they sympathized with my professional role, and in light of that would continue to work on strengthening copyright enforcement.
Re:Busting out my tinfoil hat... (Score:3, Interesting)
I hereby announce that all personal data on my drive is copyright me. For software not written by me, I am also copyrighting the organization of the data on my drive. Copying this information without my permission is a violation of my copyrights subject to a minimum license fee of $10,000,000 USD per item copied. There is also a viewership license with a minimum fee of $1,000,000 USD per incident (each file and each viewing constitutes a new incident).
There. Now if my laptop is ever rifled through without a warrant, I should have some recourse in a civil court as this was announced in a public forum.