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Challenge To US Government Over Seized Laptops

samzenpus posted more than 4 years ago | from the we-the-computerless-people dept.

United States 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."

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You don't have those rights at border crossings. (0)

Anonymous Coward | more than 4 years ago | (#30762964)

Next case, please.

Re:You don't have those rights at border crossings (4, Insightful)

QuoteMstr (55051) | more than 4 years ago | (#30763012)

How many other exceptions do you plan to make?

Re:You don't have those rights at border crossings (0)

Anonymous Coward | more than 4 years ago | (#30763028)

This is no exception. Governaments have the right to make any kind of unwarranted search at border crossings. Citizen or no citiszen.

Re:You don't have those rights at border crossings (5, Insightful)

Darth Sdlavrot (1614139) | more than 4 years ago | (#30763174)

The US Government is constrained by the Constitution.

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

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

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

IANAL, obviously.

Re:You don't have those rights at border crossings (4, Insightful)

TheGratefulNet (143330) | more than 4 years ago | (#30763306)

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

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

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

sucks, huh?

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

Re:You don't have those rights at border crossings (4, Insightful)

QuoteMstr (55051) | more than 4 years ago | (#30763554)

Don't confuse is and ought.

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

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

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

So which is it?

Re:You don't have those rights at border crossings (3, Insightful)

TheGratefulNet (143330) | more than 4 years ago | (#30763652)

(what's all that BS about?)

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

nothing.

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

nothing you can do about it, either. nothing.

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

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

Re:You don't have those rights at border crossings (5, Insightful)

donaggie03 (769758) | more than 4 years ago | (#30763904)

(what's all that BS about?)

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

nothing.

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

nothing you can do about it, either. nothing.

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

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

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

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

Even Simpler (1)

tjstork (137384) | more than 4 years ago | (#30763308)

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.

Re:Even Simpler (2, Informative)

FlyingBishop (1293238) | more than 4 years ago | (#30763658)

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:You don't have those rights at border crossings (4, Insightful)

91degrees (207121) | more than 4 years ago | (#30763338)

But if nobody is going to prevent the government agents from violating the constitution, then it doesn't make much difference what the thing says.

The government *does* have the right !! (4, Interesting)

bradley13 (1118935) | more than 4 years ago | (#30763424)

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.

Re:The government *does* have the right !! (3, Interesting)

OzoneLad (899155) | more than 4 years ago | (#30763738)

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 !! (5, Insightful)

donaggie03 (769758) | more than 4 years ago | (#30763958)

Obviously, if you leave one country, but haven't entered the next country, you are in the Borderlands. We should all enter the Borderlands and set up a government there. You know, that 100 sq ft area considered "not past customs". But wait . . if we try to do something like that, the other governments would say that it is their land, and they have jurisdiction there . .. so that land really is part of that government . . . so the constitution should apply . . .

Re:The government *does* have the right !! (3, Insightful)

thue (121682) | more than 4 years ago | (#30763846)

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:The government *does* have the right !! (0)

Anonymous Coward | more than 4 years ago | (#30763920)

Thank you for posting this, so I didn't have to.

Re:You don't have those rights at border crossings (5, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#30763580)

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.

Re:You don't have those rights at border crossings (0)

Anonymous Coward | more than 4 years ago | (#30763662)

The governmenmthas teh authority to restrict commerce. They check yoru car for fruit. Now that data is considered property thanks to the DMCA and RIAA, they have the right probably based just on that. To ensure you are not taking software or other copyrighted items out of the country.

Re:You don't have those rights at border crossings (2, Interesting)

Scrameustache (459504) | more than 4 years ago | (#30763914)

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 (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30763448)

They also have the right to correct spelling.
Lucky that your post didn't cross the border, eh ?

Re:You don't have those rights at border crossings (2, Interesting)

Anonymous Coward | more than 4 years ago | (#30763538)

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. Many of them are acceptable, some are even desirable. But none are "natural", and even less are "the only option".

Re:You don't have those rights at border crossings (1)

maxwell demon (590494) | more than 4 years ago | (#30763042)

We need only two exceptions to cover all interesting cases:

  • When crossing a border
  • When not crossing a border

Re:You don't have those rights at border crossings (3, Informative)

corsec67 (627446) | more than 4 years ago | (#30763122)

Or just redefine border [wired.com]

Re:You don't have those rights at border crossings (3, Interesting)

Rakshasa Taisab (244699) | more than 4 years ago | (#30763162)

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 (5, Insightful)

Darth Sdlavrot (1614139) | more than 4 years ago | (#30763246)

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

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

Re:You don't have those rights at border crossings (1)

tjstork (137384) | more than 4 years ago | (#30763322)

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.

Re:You don't have those rights at border crossings (0, Troll)

Darth Sdlavrot (1614139) | more than 4 years ago | (#30763440)

Customer Service Attitude? What, pray tell, are you on about?

Given what I've heard, I can can just as easily imagine that my laptop could have been seized on my recent trip to Ireland.

I don't keep single copies of important work. And I wouldn't like having my laptop seized, but it wouldn't be the end of the world as the GP would have us believe.

Re:You don't have those rights at border crossings (1)

Rob the Bold (788862) | more than 4 years ago | (#30763496)

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.

Re:You don't have those rights at border crossings (1)

mortonda (5175) | more than 4 years ago | (#30763254)

A laptop can be replaced, but data can't. Be sure you leave a backup behind!

Re:You don't have those rights at border crossings (2, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#30763630)

Absolutely, and even without the the risk of confiscation, flying is one of the times when a laptop is most likely to be lost or damaged. Run a backup before you leave, run an rsync (or whatever) update before you go back.

Re:You don't have those rights at border crossings (2, Interesting)

Opportunist (166417) | more than 4 years ago | (#30763280)

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 one of those babies outside a sandbox?
2) Or execute them while attaching the laptop to a government network?
3) Or copying it, handing it to whoever handles forensics for them and him executing it on a network?
4) Me getting blamed for the ensuing damage?

There is a very good reason I encrypt everything on my laptop every time I have to travel to the US. So far I have been lucky and was never asked to decrypt it...

Re:You don't have those rights at border crossings (1)

RMH101 (636144) | more than 4 years ago | (#30763414)

Very low, I'd imagine. Let's try the converse: "I work in medical forensics and virus research. Thus I tend to have a few live viruses in my bag, very alive and ready to strike"
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.

Re:You don't have those rights at border crossings (1)

Opportunist (166417) | more than 4 years ago | (#30763456)

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 have to actively DO something to make the infection happen. You have to run that program. That's the difference, and that's generally also the reason why special care is unnecessary when transporting them. Just 'cause I have them on my HD doesn't mean I can infect anyone around (ok, if I ran it, if WiFi or other wireless communication is on... let's not go overboard here).

I'm not so sure that there are any reasonable precautions in existance. I'm actually pretty sure they either have the order to make a complete image (by the way of "insert DVD, plug USB drive, start computer...) or, worse, they have the order to browse the drive and open files that sound suspicious. And as anyone knows who got infected by a PDF document or by a Windows exploit, opening a data file or even just browsing into the wrong directory can trigger an infection.

Re:You don't have those rights at border crossings (1)

goaliemn (19761) | more than 4 years ago | (#30763474)

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.

Border crossing and the fourth (4, Interesting)

mangu (126918) | more than 4 years ago | (#30762966)

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

Re:Border crossing and the fourth (2, Funny)

hellfish006 (1000936) | more than 4 years ago | (#30762994)

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:Border crossing and the fourth (2, Insightful)

Dunbal (464142) | more than 4 years ago | (#30763032)

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

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

depends on the tech (0)

Anonymous Coward | more than 4 years ago | (#30763470)

techs are being improved that can give reasonable certainty for HIV within 1-2weeks .. basically by being extremely sensitive and detecting every very small numbers of the virus.

and actually for some people like refugees these ... and even the 6month versions are done, and people get rejected for having HIV because the cost of treatment to the government (in countries with socialised healthcare)

also for HIV exposure (0)

Anonymous Coward | more than 4 years ago | (#30763826)

there is PEP, or post exposure prophylaxis, where they give you a course of antivirals, and if you start within like 1hr of being exposed youve got a reasonable chance of not being infected.

Re:Border crossing and the fourth (0)

Anonymous Coward | more than 4 years ago | (#30763670)

6 months works fine, maybe they could filter out the illegals....

Re:Border crossing and the fourth (2, Informative)

plague3106 (71849) | more than 4 years ago | (#30763838)

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 (5, Insightful)

Golddess (1361003) | more than 4 years ago | (#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.

Re:Border crossing and the fourth (3, Informative)

dkleinsc (563838) | more than 4 years ago | (#30763084)

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 (3, Insightful)

Opportunist (166417) | more than 4 years ago | (#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:Border crossing and the fourth (3, Informative)

bberens (965711) | more than 4 years ago | (#30763864)

It's the same as the rest of the searches at the airports, security theater.

Re:Border crossing and the fourth (1)

TheLink (130905) | more than 4 years ago | (#30763894)

1) Free laptops
2) Catching stupid/ignorant people
3) Looking busy

Re:Border crossing and the fourth (2, Informative)

joeyblades (785896) | more than 4 years ago | (#30763912)

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 (0)

Anonymous Coward | more than 4 years ago | (#30763728)

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.

Well, dusting for fingerprints is also a waste of money, because everyone who watches TV knows about fingerprints, so criminals always wear gloves. NOT.

Many (most?) criminals aren't that smart, which is fortunate for the rest of us.

Re:Border crossing and the fourth (5, Interesting)

corbettw (214229) | more than 4 years ago | (#30763058)

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.

Re:Border crossing and the fourth (1)

halcyon1234 (834388) | more than 4 years ago | (#30763480)

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 border searches or anything... but... if the point of these searches is to nap 'contraband' information, I would think it would be highly effective.

What's that saying that always floats around whenever an *AA attacks a P2P network? "Never underestimate the bandwidth of a box of floppies"-- or in this case, a 320GB 2.5" hard drive?

If it's an effective means of transporting tons of music files between friends, then surely it's just as effective for contraband-runners. And if that's the case, then yes, preventing those laptops from crossing the border (via fear of high probability of being caught) is a viable strategy.

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

I don't think so. So-- ummm-- go, lawyers? Yay? :|

Let me answer that for you. (3, Insightful)

khallow (566160) | more than 4 years ago | (#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.

Re:Let me answer that for you. (1)

corbettw (214229) | more than 4 years ago | (#30763940)

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

Re:Border crossing and the fourth (1)

Ihlosi (895663) | more than 4 years ago | (#30763110)

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 (3, Insightful)

bill_mcgonigle (4333) | more than 4 years ago | (#30763128)

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 (3, Informative)

Jeremy Erwin (2054) | more than 4 years ago | (#30763256)

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.

Re:Border crossing and the fourth (1)

bill_mcgonigle (4333) | more than 4 years ago | (#30763532)

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:Border crossing and the fourth (1)

mcgrew (92797) | more than 4 years ago | (#30763938)

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

Re:Border crossing and the fourth (2, Insightful)

IndustrialComplex (975015) | more than 4 years ago | (#30763224)

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

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

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

Re:Border crossing and the fourth (1)

rolfwind (528248) | more than 4 years ago | (#30763252)

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 (4, Informative)

bsDaemon (87307) | more than 4 years ago | (#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 (5, Informative)

jittles (1613415) | more than 4 years ago | (#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 (4, Interesting)

SirGeek (120712) | more than 4 years ago | (#30763166)

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 (4, Informative)

Jeremy Erwin (2054) | more than 4 years ago | (#30763436)

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.

Re:Policy document (0)

Anonymous Coward | more than 4 years ago | (#30763144)

Ok, read the pdf. It doesnt tell me anything new than that reported on the internet outlets.
So governments help each other out by excluding diplomats, yet other
things like attorney-client privileges, individual freedom can be thrown out the window.

Re:Policy document (1)

blee37 (1181835) | more than 4 years ago | (#30763156)

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 any need of proving suspicion. This is quite an invasion of people's privacy and property, yet realistically I don't think this will endanger attorney-client privilege or trade secrets. 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.

Re:Policy document (2, Insightful)

ElSupreme (1217088) | more than 4 years ago | (#30763282)

Just because he *probably* wont remember. And *probably* won't do anything about it. And it *probably* won't be a violation of your rights. DON'T MEAN YOU SHOULD BE COMPLACENT!

It can be all three, and if you let it be that way for a while you won't be able to say anything when those things start happening.

Re:Policy document (5, Insightful)

IndustrialComplex (975015) | more than 4 years ago | (#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:Policy document (2, Informative)

YouWantFriesWithThat (1123591) | more than 4 years ago | (#30763418)

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 already.

C. Detention and Review in Continuation of Border Search [...] Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.

Re:Policy document (0)

Anonymous Coward | more than 4 years ago | (#30763882)

If they can search without you present, who says they can't just take your files on a thumb drive. They don't have to memorize anything...

Re:Policy document (1)

plague3106 (71849) | more than 4 years ago | (#30763946)

The problem is when they take the laptop. Then they don't need to memorize anything. Or they've also been known to simpy copy the files.

Your argument doesn't stand.

Re:Policy document (0)

Anonymous Coward | more than 4 years ago | (#30763164)

You are a terrorist bsDaemon! You slashdotted cbp.gov site!

Policies and the like (3, Insightful)

Shivetya (243324) | more than 4 years ago | (#30763248)

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 (4, Funny)

140Mandak262Jamuna (970587) | more than 4 years ago | (#30763020)

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!

Re:Oh! that. I thought the laptops have become obe (-1, Flamebait)

bjourne (1034822) | more than 4 years ago | (#30763050)

Nobody gives a shit. Learn to read moron.

Re:Oh! that. I thought the laptops have become obe (0)

Anonymous Coward | more than 4 years ago | (#30763108)

I guess you missed the article on the new 32 inch netbooks

Re:Oh! that. I thought the laptops have become obe (0, Troll)

Rakshasa Taisab (244699) | more than 4 years ago | (#30763126)

That's nothing.

When I read it I couldn't get the image out of my head of over sized penises cross dressing and doing lap dances in order to fool borderline agents in a ploy to sneak weapon-grade lawyers into the country.

Next time, I'll just read more carefully instead of making a post about it.

Way Around this Problem (-1, Offtopic)

Murdoch5 (1563847) | more than 4 years ago | (#30763052)

Move to Canada, and we will throw in FREE health care it's a 2 for 1 offer

Re:Way Around this Problem (1)

dkleinsc (563838) | more than 4 years ago | (#30763096)

If too many of us do that, though, we'll get the Canadian equivalent of Lou Dobbs complaining about all those dirty American immigrants.

Attorney Client Privilege (4, Interesting)

dreamchaser (49529) | more than 4 years ago | (#30763056)

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.

Re:Attorney Client Privilege (1)

Aldenissin (976329) | more than 4 years ago | (#30763092)

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...

Re:Attorney Client Privilege (1, Informative)

Anonymous Coward | more than 4 years ago | (#30763180)

--
I won't reply back to Anon. Cowards. Show the courage to log in so I'll know you get responses. You won't waste my time.

We don't care.

Re:Attorney Client Privilege (1)

jmauro (32523) | more than 4 years ago | (#30763812)

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 (3, Informative)

sirwired (27582) | more than 4 years ago | (#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

Re:Lawyers aren't diplomats (5, Insightful)

cbhacking (979169) | more than 4 years ago | (#30763228)

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 (3, Informative)

cenc (1310167) | more than 4 years ago | (#30763472)

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.

Re:Lawyers aren't diplomats (0)

Anonymous Coward | more than 4 years ago | (#30763422)

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

Fine. Everyone crossing the northern or southern US border should stuff any item they want to protect from search in the special "pouch" all females carry with them throughout their life. Why should diplomats be the only persons whose pouches are protected from search?

Re:Lawyers aren't diplomats (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30763464)

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

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

Re:Lawyers aren't diplomats (1)

maxume (22995) | more than 4 years ago | (#30763866)

Yeah, unless they successfully challenge the current legal situation and get it changed.

If only there were some place that we could discuss such a challenge.

Re:Attorney Client Privilege (1)

ElSupreme (1217088) | more than 4 years ago | (#30763316)

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

I would hope that would be more important than Attorny client privilege.

Infernal Gateways (1)

scorpivs (1408651) | more than 4 years ago | (#30763146)

I read somewhere (Dante, I suppose) that there exixt special accomodations for lawyers and the like.

Seizure and privacy are the key (4, Informative)

what about (730877) | more than 4 years ago | (#30763186)

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 ?

Re:Seizure and privacy are the key (1)

esocid (946821) | more than 4 years ago | (#30763542)

Flagged as Enemy of The State.

Re:Seizure and privacy are the key (1)

The FBI (1717712) | more than 4 years ago | (#30763922)

Flagged as Enemy of The State.

Done.

Hmmh (0)

Anonymous Coward | more than 4 years ago | (#30763192)

Oversized laptops... They're almost oversized by definition for proper mobility.

Do what I do. (0)

Anonymous Coward | more than 4 years ago | (#30763328)

Stay home.

They should improve the system (2, Interesting)

jonwil (467024) | more than 4 years ago | (#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.

Re:They should improve the system (1)

querist (97166) | more than 4 years ago | (#30763438)

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 by the customs guy. He said I couldn't bring the apple into China and he gave me a receipt for one apple. I didn't bother trying to retrieve the apple when I went back to HK via the same train station. If China will give a receipt for an apple, why can't the USA give a receipt for something as valuable and traceable (serial numbers, etc) as a laptop computer?

Unreasonable? (0)

Anonymous Coward | more than 4 years ago | (#30763426)

"The groups argue that the practice of suspicionless laptop searches violates fundamental rights of freedom of speech and protection against unreasonable seizures and searches."

Silly rabbits, there have been no fundamental rights in the U.S. for years now....

This should be same as the rrest... (1)

hesaigo999ca (786966) | more than 4 years ago | (#30763596)

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 this is way off, not only could they plant something, then you would only find out about it afterwards...and have to put up a good defense, but in the lawyer's case who lives out of his briefcase and laptop,
that is virtual suicide...they really do not want to make life easy for traveling, then they wonder why tourism is way down...
not only are the tickets getting too expensive by the day, they make it impossible for someone to travel in comfort or even
to be able to keep working from abroad.

Consider the arguments a little closer (3, Insightful)

selil (774924) | more than 4 years ago | (#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..).
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