Challenge To US Government Over Seized Laptops 246
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."
Border crossing and the fourth (Score:5, Interesting)
Aren't border crossings an exception to the Fourth Amendment, or rather, a circumstance where any search is considered "reasonable" by default?
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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.
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If you're going to suggest stuff like this, at least be accurate. In many cases HIV can be detected within two to eight weeks, although in some cases it can be up to three months. Testing for HIV has advanced.
Re:Border crossing and the fourth (Score:4, Informative)
Just go back to the original definition of quarantine [wikipedia.org], that's long enough.
But as has been mentioned, checkpoints are 'technically outside US soil', so you could be attacked by pirates whilst at a checkpoint and have no redress. Which seems to be pretty much what is actually happening.
Re:Border crossing and the fourth (Score:5, Insightful)
Re:Border crossing and the fourth (Score:4, Informative)
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".
Re:Border crossing and the fourth (Score:4, Insightful)
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:Border crossing and the fourth (Score:4, Informative)
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2) Catching stupid/ignorant people
3) Looking busy
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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.
Re:Border crossing and the fourth (Score:5, Interesting)
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.
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Not that I'm arguing for bord
Let me answer that for you. (Score:4, Insightful)
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.
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I agree with that view. If it's not accomplishing anything, there's no real compelling state interest to override everyone's rights.
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Aren't border crossings an exception to the Fourth Amendment,
Yeah. Kind of like "bed without sheets" is an exception to "bed".
Re:Border crossing and the fourth (Score:4, Insightful)
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.
Re:Border crossing and the fourth (Score:4, Informative)
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.
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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.
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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
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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.
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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
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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
Re:Border crossing and the fourth (Score:4, Insightful)
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.
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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
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Just to nitpick, but it really is important because of the context. The Constitution does not place limits on the actions of the government. The US Constitution grants the government powers. The problem is that a number of people were worried that the government would work to grow those powers in an unbounded way and so they insisted on the Bill of Rights as an c
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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.
Re:Border crossing and the fourth (Score:4, Informative)
The Federal Ninth Ciruit Court of Appeals, apparently. The issue has not yet made it to the Supreme Court. http://en.wikipedia.org/wiki/Border_search_exception [wikipedia.org]
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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)
Re:Policy document (Score:5, Informative)
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)
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)
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.
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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
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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)
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.
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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
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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
Policies and the like (Score:4, Insightful)
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
Oh! that. I thought the laptops have become obese (Score:5, Funny)
Attorney Client Privilege (Score:5, Interesting)
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.
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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...
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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.
Lawyers aren't diplomats (Score:4, Informative)
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
Re:Lawyers aren't diplomats (Score:5, Insightful)
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.
Re:Lawyers aren't diplomats (Score:4, Informative)
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.
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The only things exempt from search at the border are diplomatic pouches.
hmmm, reread the 4th amendment several times and never saw that...
That's because you need to read Article 27 of the Vienna Convention for Diplomatic Relations. The United States still has to honor treaties.
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I would hope that would be more important than Attorny client privilege.
Seizure and privacy are the key (Score:5, Informative)
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 ?
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They should improve the system (Score:3, Interesting)
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.
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This should be same as the rrest... (Score:2)
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
Consider the arguments a little closer (Score:4, Insightful)
Back in the days of DOS, Penn Jillette... (Score:5, Funny)
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
ECHO GOODBYE
Re:Back in the days of DOS, Penn Jillette... (Score:4, Funny)
Talk at Shmoocon (Score:3, Informative)
Cheers,
T
Re:You don't have those rights at border crossings (Score:5, Insightful)
How many other exceptions do you plan to make?
Re:You don't have those rights at border crossings (Score:4, Informative)
Or just redefine border [wired.com]
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The interesting bit with that extended border thing, is that technically the airport any international flight lands at is a border. That adds an extra 31,416 square miles of border that they're allowed to search at all times. With a total area of 3,794,101 square miles they only need 120 perfectly placed airports with an 'international border point' to cover all of the US.
How many already exist?
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Could be interesting to see a map with each of those airports pinned and a 100 mile circle around it. Just to see if any place is left out.
Re:You don't have those rights at border crossings (Score:5, Insightful)
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.
Re:You don't have those rights at border crossings (Score:5, Insightful)
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.
Re:You don't have those rights at border crossings (Score:5, Insightful)
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?
Re:You don't have those rights at border crossings (Score:4, Insightful)
(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.
Re:You don't have those rights at border crossings (Score:5, Insightful)
(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.
/sarcasm
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.
Re:You don't have those rights at border crossings (Score:5, Insightful)
As George Bernard Shaw famously and pithily put it:
Re:You don't have those rights at border crossings (Score:5, Informative)
(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.
You rephrased the fact that you feel there is NOTHING anyone can do 8 times over at least 2 posts. The irony is that you're commenting on an article where they are trying to do SOMETHING.
In fact, even you're doing something (it's just no positive). You're an enabler. You go around telling everyone there's nothing you can do so it's OK. At the very least just do society a favor and STFU.
Re:You don't have those rights at border crossings (Score:5, Insightful)
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.
Even Simpler (Score:2)
The US Government is constrained by the Constitution.
Yes, but in the sense, the government is only allowed to do what it says the constitution says it can do. Essentially, if not for the 4th amendment, you could make the argument the Federal government is not allowed to conduct searches at all. It's up to the states.
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Not at the border. There's a ton of language in sections 7,8, and 9 of article I that makes it pretty clear that dealing with foreigners is the domain of Congress.
Re:Even Simpler (Score:4, Interesting)
Re:You don't have those rights at border crossings (Score:4, Insightful)
The government *does* have the right !! (Score:5, Interesting)
The 4th amendment does not apply. As with every other country, the US considers domestic law to only apply when you are inside the country. If you have not yet cleared customs, you are technically not in the country. Therefore, you do not benefit from the protections of domestic law. This may seem like quibbling, but it is how every country controls its borders.
It is not only laptops: many people have also been required to show the photos on their cameras [fredoneverything.net], as well as the contents of other electronic devices.
Whether or not such searches make any sense is another question altogether.
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The 4th amendment does not apply. As with every other country, the US considers domestic law to only apply when you are inside the country. If you have not yet cleared customs, you are technically not in the country. Therefore, you do not benefit from the protections of domestic law. This may seem like quibbling, but it is how every country controls its borders.
Are you then protected by the domestic laws of the country you're leaving, or have you entered some sort of fairy tale (the bad ones with blood and nightmares) limbo place where you have no rights whatsoever? I wonder what other rights they can ignore under the pretext that you're "not in the country yet".
Re:The government *does* have the right !! (Score:5, Insightful)
Re:The government *does* have the right !! (Score:4, Insightful)
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.
Re:You don't have those rights at border crossings (Score:5, Insightful)
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.
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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 ver
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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.
More precisely, the 4th amendment states the rights of the people, not only of citizens. In some places rights are defined for people (such as the right to a fair trial), and in others for citizens only (such as voting, becoming president, etc.)
Re:You don't have those rights at border crossings (Score:5, Insightful)
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.
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WTF? Governments don't have rights.
What you are thinking of is "government has a duty to protect its citizens", and this duty is all too easily perverted into "government has a right to exert control over its citizens", not even mentioning the xenophobic mentality "everything alien is presumed hostile until proven otherwise".
I cringe every time someone suggests that any form of government control or freedom impediment is "logical", or even "natural". Every government interference is just that, interference.
Re:You don't have those rights at border crossings (Score:4, Interesting)
So I'm going to the US for a IT related conference by invitation. Obviously having your laptop with you is 'mandatory', yet can I really afford the risk of losing an expensive computer that pretty much is the center piece of my thesis studies and various programming related activities?
More importantly, how does the US expect to keep its technological lead when visitors have these kinds of worries just entering the country?
Re:You don't have those rights at border crossings (Score:5, Insightful)
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.
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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.
Boy, that's a heck of a customer service attitude to take. And we want Americans to sell stuff to the rest of the world? The enterprise of the USA has to be as friendly and easy as McDonalds, and that, my friend, is not.
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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.
Or that you couldn't convert to or adopt a more ascetic faith, one that puts a lesser value on worldly goods, like, for instance Buddhism? I don't see why you haven't considered this option either. Really, travelers need to be more prepared w.r.t. faith needs in this post 9/11 world.
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Re:You don't have those rights at border crossings (Score:5, Insightful)
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?
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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.
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A laptop can be replaced, but data can't. Be sure you leave a backup behind!
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Here's an interesting one for you: I work in IT forensics and malware research. Thus I tend to have a few exploits on my laptop, very alive and ready to strike. Especially when I go to a convention in the US and plan to use them for a speech. Many of those things are POCs that can by their very nature not be detected by any common anti malware program, because they exist exactly once, on my laptop.
How high would you estimate the chance that...
1) Some dufus border cop has nothing better to do than to start o
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I'm sure along with the guidelines they'll have been issued with around what to check for, they'll also have some strict controls on what not to do with it - like keeping it airgapped.
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The difference is maybe that there are (hopefully!) laws and regulations how you may transport those viruses. After all, they can infect simply by exposing people to them.
Such laws and restrictions do not apply when transporting malware, for a good reason. A computer virus by itself is very harmless. Even having it on your hard drive doesn't make it dangerous in any way. There are quite a few pieces of malware on my server, yet it's safe (not only 'cause it runs a system those viruses cannot infect). You ha
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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.
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If too many of us do that, though, we'll get the Canadian equivalent of Lou Dobbs complaining about all those dirty American immigrants.
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That way, some clown wants to inspect your laptop, you can say "Well, the stupid thing's broken, but sure, here you go." Agent boots the machine and as far as he can tell, he gets the usual Windows bluescreen. I can't imagine anyone