Court Suggests Politically Motivated Border Searches May Be Unconstitutional
from the that-would-be-big-news dept
The federal government has long held that you have no Constitutional rights at the border, and that they can search your laptop at the border without following the 4th Amendment. Unfortunately, courts have agreed with this position across the board. However, some situations can get a little trickier. What about if they're taking your laptop away and searching it (and holding it) offsite (i.e., over the border)? Well, one court has said that's okay if there's reasonable suspicion, but the specific boundaries of what's legal are still pretty fuzzy. The government, more or less, holds that anything goes. However, last year, David House, a friend of Bradley Manning, sued the government for taking his laptop away when he crossed the border from Mexico. They held the laptop for 49 days, only returning it after the ACLU sent them a threatening letter.As House notes, he believes the seizure of his laptop was entirely political, and not related to any suspicion or threat that House caused. He also notes that the laptop contained a bunch of confidential information about the efforts to support Manning in his legal fight against the government. The US government responded by basically saying, "hey, look, we're the federal government and we can do what we want, so leave us alone." Specifically, the US government continues to insist that searching a laptop is no different than searching your luggage. Of course, as we've noted, that's ridiculous:
- 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. With a suitcase, you specifically 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.
Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border.The court also makes it clear that while border searches may not violate the 4th Amendment, if they are politically motivated, it's possible that there could be a 1st Amendment issue, which could make things interesting. Specifically, the court notes that since none of the government's interest had anything to do with border patrol this might actually be a 1st Amendment violation:
As discussed above, the agents questioned House solely about his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had contact with anyone from WikiLeaks during his trip to Mexico.... None of their questions concerned border control, customs, trade, immigration, or terrorism....This stage of the case is just the court rejecting the feds attempt to get the case dismissed, but certainly the language explaining why that motion was denied is extremely encouraging.
[....]
The Defendants’ assertion that concluding that House has alleged a plausible First Amendment claim would be somehow inconsistent with the Court’s finding that the initial search and seizure was routine under the Fourth Amendment analysis ignores the difference in legal standards that apply to Fourth Amendment and First Amendment claims. See Tabbaa, 509 F.3d at 102 n. 4 (noting that “distinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards, than distinguishing what is and is not routine in the Fourth Amendment border context”). That the initial search and seizure occurred at the border does not strip House of his First Amendment rights, particularly given the allegations in the complaint that he was targeted specifically because of his association with the Support Network and the search of his laptop resulted in the disclosure of the organizations, members, supporters donors as well as internal organization communications that House alleges will deter further participation in and support of the organization. Accordingly, the Defendants’ motion to dismiss House’s First Amendment claim is DENIED.
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Filed Under: border searches, bradley manning, david house, first amendment, fourth amendment, free speech
Companies: wikileaks
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If you're a tourrorist going to Canada you bring you laptop with you because you want to have your laptop, it just happens to have all of your personal documents because that's where you usually keep them. You're bringing your laptop because you want your laptop, not because you want your personal documents. However, you don't just bring your house (which also has all of your personal documents) just because you need a place to stay.
If your personal documents weighed a couple of pounds or took up a couple of cubic inches each you'd probably get them off your laptop anytime you went anywhere, much less over the border. But they don't, so you don't. So whether people should leave their stuff there or not, it happens, which makes it a completely different situation than what the founding fathers had in mind when they wrote up and approved the 4th amendment.
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Der Steps
Use disk encryption.
Have a secondary user profile for show.
Gladly show people your "SFW" user account, files, et al without ever needing reveal anything.
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Re: Der Steps
Not that Linux isn't a good idea. But sometimes you use the software that you use.
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Simple answer
Nothing to see. It is just an internet machine. Also since we have seen in the past the border agents have a hard time searching anything that is not a windows partition it is a double win. Just make sure you own a IDE/SATA to USB drive and that you have the drive placed some where they can't locate it, then go on your merry way. Even if they take the laptop and the USB stick, you still have all your data. I guess they could always take apart your car to find the hard drive, but that is going to a lot harder to justify then just "Searching" the person and their surroundings.
Proof that for every invasive right demeaning action there is a way to fight it.
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Re: Simple answer
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Drunk Driving Checkpoints
TSA Searches
Border Searches
In all cases - the above ASSUMES guilt before proven in a court of law, and in the majority of the same cases, there is no probable cause at all.
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see http://www.oyez.org/cases/1980-1989/1989/1989_88_1897
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The spooks..
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Are you not in control of your laptop?
Outside of the operating system, I can choose everything that appears on my laptop. I can choose to keep my mail on it (or not), I can choose to install software, I can choose to keep my copy of the wikileaks notes if I so wish.
That is my choice.
Are you suggesting that you cannot control the content of your own laptop? Are you that feeble?
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I have a laptop that I use essentially only on travels. I only put data on it that I will need during the trip, and I remove it after when I get back, placing it on my NAS here in AC central. Other than that, I don't specifically carry a lot of data around. I leave it stored on mail servers, on other servers, etc.
When I cross the border, I consider what is on my laptop in the same manner as I consider anything else I am declaring. I don't bring the bag that had a box of road flares in it with me, as an example, because that might set off the bomb detectors.
See, I make the choices. You can too. Most people choose not to take control of their laptops, that that's their problem. When you present at customs, everything you have with you is part of your declaration, including the content of the hard drive, IMHO.
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Even so, the idea that physically smuggling data on your laptop could ever be a problem is ridiculous. If you want something to get to the other side of the border you can put it online and let people on the other side of the border download it, all without ever leaving your home. How could the contents of a person's hard drive ever be an issue in the specific case of a border crossing?
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What you present yourself at the border with is subject to inspection. They can tear your laptop into little pieces if they suspect drugs hidden in it, and you have no real get back. Your consitutional rights don't extend into the border area (technically you are not in the US yet, you are asking for the right to enter the US, which puts you in a very limited position).
You have the choice, regardless of what Mike is trying to push.
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That I'm not debating. The physical contents of my laptop are valid points of suspicion. The software I have on my laptop is not ever going to contain cocaine, though. They do not need to search my hard drive for drugs, and they certainly don't need to send my laptop somewhere else in order to be sure that it doesn't contain drugs, explosives, or immigrants. Such actions are completely at odds with the idea that they're trying to prevent smuggling of illegal goods, and seem more like they're just trying to use technicalities to try to get around the restrictions that apply to normal law enforcement.
"You may choose NOT to keep your laptop clean, you have choose to bring material with you that is illegal or questionable, you may bring your emails to AQ on your hard drive. That is your choice. It isn't any different from what is in your suitcase."
You really don't see any difference from choosing specifically to bring something, and just forgetting to delete it to appease the unrestricted border guards? YES, I have the ABILITY to delete things from my laptop. I fully intend to spend a week going through it and removing everything the ICE might object to before going to England this summer. That doesn't change that the need to do so is COMPLETELY FUCKING RIDICULOUS. The only reason to bring software across the border on my laptop is because I like having it on my laptop, not to smuggle it into or out of another country. I'm not going to go across the border to pirate Metallica and then come back; if I wanted to pirate Metallica, I could do so here. The idea that software is different on the border than anywhere else is wrong, and there's no justification for searching it beyond the lack of a legal requirement for justification.
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Regardless you can also choose to encrypt what you consider to be private information because people DO lose or forget these things.
For all of that most people don't. It's just too much of a bother. So they have all their logins and passwords stored there, including for their bank accounts and goodness knows what else including the infamous p0rn!
We keep forgetting that most of the population isn't as technically adept as the vast majority of readers of Techdirt are.
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You can control your OS? Are you that feeble?
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4th Amendment Rights...
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While it might hold you up in security for a few and they confiscate the laptop, they'll no doubt be working for months or years to decrypt the information. One laptop does nothing. A thousand takes a lot of time. Tens of thousands would take forever. And if every single decrypted hard drive only produced "Ha ha! You're an idiot for trying!", that would really drive the resources through the roof while producing no results.
With that much waste of taxpayer dollars, they'd have to appear before Congress or cut costs throughout their departments.
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from aclu: But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary of theUS
http://www.aclu.org/technology-and-liberty/fact-sheet-us-constitution-free-zone
https://ww w.aclu.org/constitution-free-zone-map
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This 100 mile band around the border covers something like 70%+ of the population of the country.
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