Think Tank Says DHS Should Stop Laptop Border Searches

from the but-dhs-will-ignore dept

We’ve definitely been concerned about Homeland Security and the US government’s belief that it’s okay to search laptops at the border without probable cause. We’ve discussed over and over again why the argument that it’s the same as searching luggage simply doesn’t make any sense. There are some key and important differences:

  • You mostly store everything on your laptop. So, unlike a suitcase that you’re bringing with you, it’s the opposite. You might specifically choose what to exclude, but you don’t really choose what to include.
  • The reason you bring the contents on your laptop over the border is because you’re bringing your laptop over the border. If you wanted the content of your laptop to go over the border you’d just send it using the internet. There are no “border guards” on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they’re not doing it by entering that country through border control.

It appears others are starting to recognize these issues as well. A think tank called The Constitution Project has put out a report saying that Homeland Security should stop these laptop searches. The full report (pdf) is an interesting read, and makes the case that these searches, unlike searches of luggage, go beyond what is Constitutionally sound:


Historically, the scope of what was covered by the border search exception was fairly limited,
since the exception is confined to the items a traveler carries across the border. As a practical
matter, most private documents, letters, photographs, and other personal effects would remain
in an individual?s home, safeguarded by full Fourth Amendment protections and the warrant
requirement. With today?s technology, however, people can and do travel with vast quantities
of private, personal information stored on their laptops and other electronic devices. Unlike at
any time in the past, individuals who travel internationally, by virtue of legitimately choosing to
carry electronic devices, are unknowingly subjecting volumes of personal information to
involuntary and suspicionless search and review by federal law enforcement authorities. This
problem is compounded by the fact that many electronic devices are used to carry both
personal and business-related information. The continual evolution in how people use
electronic devices in their everyday lives creates growing tension between the Fourth
Amendment guarantees and what historically has been viewed as a narrow exception to the
requirements for probable cause and a warrant.

Unfortunately, we’ve seen such arguments made in court, and very few courts seem sympathetic to this argument. I find the argument compelling, but courts don’t seem bothered by the massive stretching of the once-narrow exception thanks to the massive change in technology. In part, I believe, it’s because they haven’t really taken into account just what a massive conceptual change it is to have all of your personal records stored on your computer. If you don’t think of what the technology allows, but just think of it as “a thing” then you can see why a court would be confused. But, that’s why we get so concerned about technologically illiterate courts deciding things that pertain to technology.

Of course, it’s unlikely that this report will make much of a difference. Homeland Security has made it clear that they are going to search laptops and they’re not really much interested in the intention behind the Constitution.

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Comments on “Think Tank Says DHS Should Stop Laptop Border Searches”

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33 Comments

What?

Okay, I don’t have the time right now to read the links – I WILL – but the first thing that went through my mind was, “What is there to search on a laptop”?

Are they looking for drugs? Guns? Other misc. contraband? Are they actually turning them on and looking at files? That’s WAY too intrusive if that’s the case…

Oh wait…I bet they’re looking for downloaded music!

Jakesays:

Re: Re: What?

Actually, here in the UK we’ve had someone jailed for having “material useful to a terrorist” or something like that on their laptop, presumably a PDF of “The Anarchist’s Cookbook” or something.
Interestingly, back when we still had an actual terrorist threat in this country, the only thing our Customs agents wanted to know about your laptop was whether you’d stripped out the hard drive and batteries and hidden a pistol or a few sticks of dynamite in it.

Anonymoussays:

“?It is illegal for internet gambling enterprises to do business in Maryland, regardless of where the website operator is located,? said U.S. Attorney Rod J. Rosenstein. ?We cannot allow foreign website operators to flout the law simply because their headquarters are based outside the country.? “

http://www.techdirt.com/articles/20110524/00563014409/feds-seize-more-poker-sites.shtml

U.S. laws selectively apply at (or across) the border.

Anonymoussays:

If this is one of them Constitutional Tanks that want parts of the Constitution Bill Of Rights where it says “The Right Of The People” to only apply to selective parts of certain Amendments then I have no use for them.

Where it says in the Constitution “The Right Of The People”
that means you and me Individually, not some Collectivist grouping.

Anonymoussays:

Re: Re:

“Where it says in the Constitution “The Right Of The People”
that means you and me Individually, not some Collectivist grouping.”

What? The constitution applies to groups and individuals alike. After all, groups are composed of individuals.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

(emphasis added).

Anonymoussays:

There’s a rather unfortunate sentence in this article that sets up an easy rebuttal for supporters of border laptop searches.

The author writes “There are no “border guards” on the internet itself, so content flows mostly freely across international boundaries.” In fact, DHS (and US customs, before them) have long regarded countering smuggling of data via the Internet as part of the mission. One oft-trotted out story refers to the interception of the Internet transfer of manuals for a Tomahawk missile.

EasierPCsays:

Laptop Border Searches

The courts will not object to laptop border searches until a judge or two is forced to give up their laptop to a random stranger (customs agent) and forced to watch them root through their pictures, emails, and even Quicken data. At that point the light will go on and THEN the courts will start disallowing suspicion-less laptop searches at the border.

Anonymoussays:

Re: Re: Re: Re: Laptop Border Searches

They don’t search politicians. Unfortunately, we have two sets of laws in this country, one for the elite and one for everyone else. The “if you don’t have anything to hide” phrase doesn’t apply to the elites. If the elites had to follow the same laws as everyone else they’ll likely change them.

Roy Battysays:

Back To Square One

I am ready to trade some personal safety to increase our freedom to move about the country unencumbered. The special FBI unit authorized to listen to our communication has filed reports showing they have improperly spied on thousands of people. Most of them Americans and most in country. Their only justification is they have a warm fuzzy to do good for our country. They filed their reports two and three years downstream and face no retribution. It has fallen from the news.

Anonymoussays:

Re: Re: Re: Re: TrueCrypt

You can encrypt it in such a way that it looks like a bunch of random unpartitioned space. If correctly encrypted, no one without the key can tell the difference.

and that’s partly why these laws are retarded. Terrorists and those with something to hide will do this. This law only invades the privacy of those with nothing (that the government should be worried about) to hide.

Roy Battysays:

Political Harrassment

So you fly into the country. You deplaned and walk about in search of food or whatever. You are no where near any actual border. The FBI DETAINS YOU AND A FRIEND FOR 3 HOURS. YOU MISS YOUR FLIGHT. They ask question They keep your laptop for 44 days.DHS only returns the laptop after the ACLU sends a letter of demand. These are the fact in case HOUSE V. BIG SIS.

Anonymoussays:

This has a lot more to do with closing up the loophole of physical data transfer. Transfer of data over the internet from inside the USA to outside or outside to in, generally involves going through a select number of nodes which are easily monitored by the government.

To observe everything though there is the huge issue of physical transfer, and as hard-drives become capable of holding more and more information the threat of using a laptop to transfer sensitive data has become a larger and larger issue. Chinese Intelligence has already been documented doing this in other countries involving corporate espionage.

It is wrong, but it is important to understand exactly why the DHS cares about this if people are going to make a convincing argument as to why it shouldn’t happen.

ReallyEvilCaninesays:

Umm... professor?

Obama more than once mentioned his cred as a professor of Constitutional law. And now he has a job which not only should test this knowledge but also allows him to tailgate on the (unconstitutional) idea of executive orders, none of which he’ll actually issue to fix shit? Can someone please fill in the the blank spots for me?

Gibsays:

The Searches are a Pretext

Traditionally, such searches were designed to prevent contraband (e.g., drugs, guns, exotic plants, etc.) into the country. I don’t think DHS or anyone else believes that their occasional laptop searches will prevent child porn, plans for terrorist attacks, or any other “data contraband” from entering the country. As was noted, the data can be encrypted and sent over the Internet more easily.

In most cases, the goal appears to use the searches to pursue individuals thought to be dangerous (e.g., suspected terrorists, pedophiles, etc.) and use what they find to deny them entry into the country or arrest them. That’s what they did a couple years ago in searching the laptop of someone convicted of possessing child porn. It’s no different than the cops asking a suspect’s probation officer to perform a search as the whole warrant requirement is not needed. The looser rules (or no rules) at the border are not unique to data. They’ve been used as pretexts to bust suspects for decades when there wasn’t enough probable cause for a warrant. Law enforcement is not going to give up this tool, nor are courts likely to set precedents by denying laptop searches that could affect other searches. Instead, we may want to focus on avoiding abuses. The concept of reasonable suspicion has been tossed around as a potentially lower standard. DHS has already been forced to clarify their processes more in this area. The last thing they need is a case of some rogue employee sending this kind of data over to WikiLeaks. More consistent rules, transparency, and oversight is better for everyone.

Anonymoussays:

Re: Re: The Searches are a Pretext

While I agree with the sentiment, and you present a well thought out argument, I take issue with one statement:

“It’s no different than the cops asking a suspect’s probation officer to perform a search as the whole warrant requirement is not needed.”

This is different. The person on probation has been convicted of a crime. The probation is part of the punishment. A person not found guilty of any crime should not be subjected to the same treatment as a convicted criminal.

Andrew Fsays:

Wiretapping

This sounds like when courts first encountered wiretapping. In Olmstead v. United States, the Supreme Court held that the 4th Amendment did not prohibit warrantless wiretapping, largely because you can’t physically “search” or “seize” a phone conversation.

This didn’t change until almost 40 years late in Katz v. United States, when the Court began to recognize that the 4th Amendment protected “people, not places”.

So … give it some time?

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