Think Tank Says DHS Should Stop Laptop Border Searches

from the but-dhs-will-ignore dept

Fri, May 27th 2011 5:23pm — Mike Masnick

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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Filed Under: 4th amendment, border, dhs, ice, laptops, privacy, probable cause

33 Comments

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Jeni (profile), 27 May 2011 @ 5:54pm

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!
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- Tom (profile), 27 May 2011 @ 6:38pm
  
  Re: What?
  HA The five days they can keep your laptop is so they can contact the RIAA and file a lawsuit against you.
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- Jake, 28 May 2011 @ 1:35am
  
  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.
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RobertH (profile), 27 May 2011 @ 6:37pm

We already know Homeland Security is answerable only to the president, and does not recognize any constitutional rights of we American citizens. Why should we have any rights to object. We need to elect government representatives that will abolish this travesty of justice called Homeland Security.
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- Tom (profile), 27 May 2011 @ 6:39pm
  
  Re:
  Amen
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- Chargone (profile), 28 May 2011 @ 12:36am
  
  Re:
  which is never going to happen unless all candidates who would not are fired into the sun or something.
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- The Devil's Coachman (profile), 31 May 2011 @ 5:57pm
  
  They'll just change their name...........
  ....to something like State Security, or SS. Hmmmmmm, haven't I heard that before somewhere?
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Anonymous Coward, 27 May 2011 @ 7:04pm

"�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.
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- Anonymous Coward, 28 May 2011 @ 10:28am
  
  Re:
  It's also ironic how these border searches exist supposedly to enforce the law. Yet constitutional law doesn't apply. Laws only apply where convenient.
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Anonymous Coward, 27 May 2011 @ 7:17pm

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.
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- Anonymous Coward, 28 May 2011 @ 9:30am
  
  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).
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  - Anonymous Coward, 28 May 2011 @ 9:33am
    
    Re: Re:
    (and what do individuals assemble into .... non-groups?).
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Anonymous Coward, 27 May 2011 @ 8:04pm

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.
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- JMT, 28 May 2011 @ 2:42pm
  
  Re:
  I'd love to read the owners manual for a Tomahawk missile!
  
  "Congratulations on the purchase of your new Raytheon Tomahawk cruise missile. Please read these safety warnings before operating..."
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EasierPC, 27 May 2011 @ 8:06pm

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.
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- Anonymous Coward, 27 May 2011 @ 9:40pm
  
  Re: Laptop Border Searches
  Silly, they don't search judges. Pffft.
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  - Anonymous Coward, 28 May 2011 @ 9:35am
    
    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.
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Roy Batty (profile), 27 May 2011 @ 10:42pm

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.
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Sajjon, 27 May 2011 @ 11:00pm

TrueCrypt
Encrypt your hard drive or at least the files you don't want people to see. Problem solved.
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- Jeni (profile), 28 May 2011 @ 4:55am
  
  Re: TrueCrypt
  What's to stop them from demanding you decrypt?
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  - Anonymous Coward, 28 May 2011 @ 7:35am
    
    Re: Re: TrueCrypt
    the 5th amendment, if they don't like 1 and 4.
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  - Anonymous Coward, 28 May 2011 @ 9:38am
    
    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.
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Roy Batty (profile), 27 May 2011 @ 11:16pm

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.
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Anonymous Coward, 28 May 2011 @ 1:18am

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.
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- Christopher (profile), 28 May 2011 @ 11:53pm
  
  Re:
  Easily monitored? Then why aren't they able to catch those pedosexuals who are trading child porn? Oh, did I bring up something that is inconvenient to your stupidity there? Too bad!
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ReallyEvilCanine (profile), 28 May 2011 @ 3:49am

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?
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Gib, 28 May 2011 @ 7:40am

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.
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- Anonymous Coward, 28 May 2011 @ 10:24am
  
  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.
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abc gum, 28 May 2011 @ 8:09am

The searches are designed to demonstrate in no uncertain terms that you have no rights and you should not expect any - and if you do, you will be subjected to whatever inconvenience and humiliation the jack booted authority figure deems appropriate.
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Gene Cavanaugh (profile), 28 May 2011 @ 11:42am

Abuse of the Constitution
So long as we have the worst Supreme Court EVER, the lower courts will fall in line (they really don't have a choice) and our government will abuse that fact.
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- Christopher (profile), 28 May 2011 @ 11:56pm
  
  Re: Abuse of the Constitution
  True.... we need a couple of Supreme Court judges (mainly the conservative ones) removed from the bench for good and banned from practicing law in the United States.
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Andrew F (profile), 28 May 2011 @ 10:41pm

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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anonymous (profile), 30 May 2011 @ 2:59pm

How to beat the border
Why not just have a 2nd drive for your laptop send your main drive with your luggage and put in a drive that only boots to a linux command prompt. That should put a damper on them not being able to find anything.
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