Is This The Best Homeland Security Can Do In Defending Laptop Searches At The Border?
from the probable-cause-is-so-last-millennium dept
The courts have said that US Customs officials do not need probable cause to search laptops. While some Senators are questioning why Department of Homeland Security is searching laptops without probable cause, the administration is working hard to defend such searches at the border as reasonable. However, they're not making very much sense. The article trots out James Jay Carafano from the Heritage Foundation with a couple of interesting statements. Let's take them in order. First:"The idea that we would create some kind of sanctuary for criminals and terrorists to carry things across the border to me is absolutely ludicrous."Well, that's not just an exaggeration, it's wrong. Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border? Of course that's not true. Data flows across borders via the network all the time -- with no customs review whatsoever. No one is walking across the border with a laptop thinking that's the best way to get some data across the border. Then there's this statement:
"It's also unrealistic to require probable cause when you think about the millions of people a day who come in and go out of the country."Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America." Yet, we don't hear Carafano pushing for a removal of probable cause for searches on the street, do we?
The border searches of laptops issue is a ridiculous one. Yes, it makes sense to search through what physical goods you might be bringing into the country -- because you specifically chose to bring those goods into the country. But the digital things you have stored on your laptop are an overall archive. You didn't choose to bring those specific things across the border -- and it's not like going through a border crossing is the best way to move that content across the border. There's simply no reason for why laptop searches should be allowed without probable cause.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: border searches, customs, homeland security, laptops
Reader Comments
Subscribe: RSS
View by: Time | Thread
I'm not sure how American security is improved by making people who want to shop, eat and watch a show wait 30, 45, 60 or more minutes at the Ambassador Bridge or Windsor Detroit Tunnel?
[ link to this | view in thread ]
Border Searches
[ link to this | view in thread ]
What's ridiculous....
[ link to this | view in thread ]
wallpaper
[ link to this | view in thread ]
WTF?
[ link to this | view in thread ]
Executive Authority that know no bounds
[ link to this | view in thread ]
http://www.foxnews.com/story/0,2933,376202,00.html
[ link to this | view in thread ]
Its the Border
[ link to this | view in thread ]
Re: What's ridiculous....
[ link to this | view in thread ]
Just santize the thing...
[ link to this | view in thread ]
Just because they lie about it, doesn't mean it's so. That's illegal, plain and simple.
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.
What part of *shall not be violated* do they not understand?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Executive Authority that know no bounds
[ link to this | view in thread ]
Wait for it, wait for it...
at the rate we are giving up our liberties we will have check points just to leave our subdivisions soon.
"May I see your papers?"
"I'm just going to the store to get some stuff."
"Stuff huh? Please step out of your vehicle sir."
"I didn't do anything."
"Then you have nothing to worry about now do you?"
At that point you better hope no one using your vehicle has accidentally left anything in there. If so....see you at Gitmo :)
[ link to this | view in thread ]
Give Me a Break
#1 Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border?
Of course I don't, but the truth is some malicious actors do tranport information in that manner and searches are one way to find them. Arguing any law enforcement measure is not a "silver bullet" is not a very good complaint because no "law enforcement" measure is a "silver bullet." Following your line of argument there would be no law enforcement.
#2 Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America."
Of course, I don't because the law clearly states that the 4th amendment operates differently at the border. Your expectations of privacy, the courts have ruled again and again are lower at the border....and that courts have ruled that way for a reason...because it is impractical to use the same standard for people walking down the street.
[ link to this | view in thread ]
Moronic idiots
If I wanted to smuggle information across the boarder I can think of MANY, MANY, MANY ways. Here's a few off the top of my head:
1) Move information to a SD card and put it in your pocket
2) Burn information to a mini-CD and but it in your pocket
3) Put information onto a Sony datastick and put in your PSP
4) Put it in a microSD card and put the microSD card inside your wristwatch, sew it in your shirt, etc.
And that's just off the top of my head.
Geez... who do they REALLY think they're going to search? Terrorists? Mobsters? Drug dealers? Pedophiles?
Most of them are going to be more intelligent and more tech savy than any senator and a headless chicken is more intelligent than Fuehrer Bush. They'll simply encrypt their data, move it to something that can't be traced, etc.
[ link to this | view in thread ]
Re: Re: Executive Authority that know no bounds
[ link to this | view in thread ]
Re: Its the Border
> decided in the government's favor for over
> 200 years.
Yes, despite the fact that the Constitution itself makes no mention of a "border exception" to the 4th Amendment. It states that people shall be free of search and seizure unsupported by warrant issued upon probable cause. Period. It doesn't say "except at the border".
The government basically ignored the Constitution and did what it wanted to do and the Court rubber-stamped it.
The fact that it was decided 200 years ago is irrelevant. A bad decision is a bad decision, no matter how old it is.
> case law has established that the border can
> move inland to anywhere in the U.S. as long as
> you are kept under constant surveillance
That's a perfect example of how ludicrous the whole "border exception" has become. The Courts have basically just thrown out the Constitution altogether and are writing their own laws at this point. What's next? No warrants necessary for police searches anywhere in the USA so long as the government can demonstrate that you've ever had any kind of nexus to a foriegn country? Ever made an international call? Your home is now on the "border" and can be searched? Ever connected to a web site hosted in a foreign country from your home computer? Same deal.
It's a brave new world, folks, and we're all in for a treat.
[ link to this | view in thread ]
Re: Give Me a Break
> operates differently at the border.
Why? Seriously. Why should me expectation of privacy be lower at the border than anywhere else? Other than it's just inconvenient for the government, I mean.
> Your expectations of privacy, the courts have
> ruled again and again are lower at the border
Again, why? And more to the point, why does a court get to set the paramaters of my expectations. If they're mine, shouldn't it be *me* who defines where and when I expect privacy?
> because it is impractical to use the same standard
> (at the border) for people walking down the street.
Why? As a federal agent myself, I can attest that it's no small hurdle to meet the probable cause burdens of the warrant requirement for "people walking down the street", and having worked at the border with Customs on occasion, I've observed that it's often *easier* to meet that burder because at the border people are forced to interact with the police in a way they aren't anywhere else. Their actions, admissions and body language (all elements of probable cause) are on full display in a way they aren't to cops and agents everywhere else.
I'd argue that the warrant requirement is actually *more* practical at the border than in other situations.
One of the other posters in this thread mentioned the court decision that extends the border anywhere in the USA if the person is under surveillance. There's no rational way that could be consistent with the text of the 4th Amendment, which states that people shall be free of search and seizure unsupported by warrant issued upon probable cause. Period. It doesn't say "except at the border". And it certainly doesn't say extend that to the entire country, so long as the police start watching you at the border.
I said it above and it bears repeating: The Courts have basically just thrown out the Constitution altogether in this area and are writing their own laws at this point. What's next? No warrants necessary for police searches anywhere in the USA so long as the government can demonstrate that you've ever had any kind of nexus to a foriegn country? Ever made an international call? Your home is now on the "border" and can be searched at will. Ever connected to a web site hosted in a foreign country from your home computer? Same deal.
You may dismiss that as silly and paranoid but being in federal law enforcement myself I've seen people seriously propose such things. It's actually somewhat frightening. And if the cops themselves are starting to worry, shouldn't you be?
[ link to this | view in thread ]
> operates differently at the border.
Yeah - perhaps - but this law, again, makes no question of how this is to be applied. Any law to the contrary is simply illegal - regardless of what various Government thugs say.
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.
Again - it doesn't say anything about it being different at the border. It CLEARLY states this right "shall not be violated" - period. Regardless of what other bullshit the courts and congress want the sheep in this country to believe. That's clear and concise. I don't believe where it takes place matters - I think it means ANY US LAW ENFORCEMENT OFFICIAL that's doing his job this applies to.
Don't believe the lies you hear in the media and from the politicians of today - it's illegal, end of story - it's in direct violation of the 4th amendment.
The US constitution applies to all US Citizens when they are in contact with law enforcement based in the US.
It's not silly or paranoid - those who say it is, are just sugar coating the shit they try to feed us anymore to make yourself feel better when you know well they are violating our rights.
I like how some of you people believe that this law and that law - or this constitutional right and another aren't applicable because of 'certain' conditions.
What part of 'shall not be violated' don't some people get? Isn't that clear enough?
[ link to this | view in thread ]
Re: Give Me a Break
#1 Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border?
Of course I don't, but the truth is some malicious actors do tranport information in that manner and searches are one way to find them.
Yes, and the truth is that some malicious actors do walk down the streets every day, and random searches are one way to find them. But we don't do that because that's a violation of our basic rights.
Arguing any law enforcement measure is not a "silver bullet" is not a very good complaint because no "law enforcement" measure is a "silver bullet." Following your line of argument there would be no law enforcement.
No, not at all. Law enforcement still exists, but it follows the same basic rules of engagement that protects our civil liberties: i.e., probable cause is needed to search.
The reason for border searches is to make sure whatever the person has on them doesn't make it into the country. Border searches of laptops don't do that.
#2 Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America."
Of course, I don't because the law clearly states that the 4th amendment operates differently at the border. Your expectations of privacy, the courts have ruled again and again are lower at the border....and that courts have ruled that way for a reason...because it is impractical to use the same standard for people walking down the street.
James, you've twisted this all up in your mind. First you claim that it's not reasonable to require probable cause -- and when I point out why it *is* reasonable, you change your argument, and say that "well, the law says things are different." Notice that you have not explained your original statement: "It's also unrealistic to require probable cause when you think about the millions of people a day who come in and go out of the country."
Why is it "unrealistic" at the border but "realistic" elsewhere? "The law says so" doesn't make any statement on the "realistic" or "unrealistic" requirement.
[ link to this | view in thread ]
Re: Re: Re: Executive Authority that know no bounds
[ link to this | view in thread ]
Poster #3
Here's a probable solution: they simply take the laptop for later searching.
Border officer: Sir, we don't the time to go through all of your files here. We'll have to take your laptop from you. We'll return it in 6 to 8 weeks.
Man: But I need that for work.
Officer: Sir, are you arguing with me?
(Looks at a sheet of paper.)
And I see your name, "Ted Kennedy" is on our "watch list". Please step aside.
Man: But I need need to make a connecting flight to get home.
Officer: I said step aside. You won't be making that connecting flight today.
[ link to this | view in thread ]
take a desktop
[ link to this | view in thread ]
i'd rickroll them
He's pining for the fjords/
Never gonna give you up/
Spam Spam Spam Spam/
Never gonna let you down/
I'm a lumberjack and I'm OK/
Never gonna run around and desert you/
I fart in your general direction/
[ link to this | view in thread ]
I know it's easier to give in...
[ link to this | view in thread ]
dumb actiion
there is a thing called internet if anyone wants to bring information to the U.S. can send it that way instead.
may be you should seize the internet too!!!
that will work
:D
[ link to this | view in thread ]