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.

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

Once Again, Court Says Homeland Security Is Free To Seize & Search Your Computer Without A Warrant At The Border

from the bad-rulings dept

We've noted, repeatedly, how troubling it is that customs seems to feel no duty to obey the 4th Amendment at the border, and that the courts have allowed this. It's even worse when it comes to searching digital devices, such as laptops. As we've explained before, what you have access to via your laptop is entirely different than what you pack in a suitcase for entering the country:

1. 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.
2. 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.

And this becomes even more ridiculous in the era of cloud computing, where a drive may be mounted over the network, and thus never actually cross the border at all -- and yet, Homeland Security seems to think it has the right to search all of this, and the courts have mostly agreed.

And, once again, we have yet another appeals court ruling that says this is fine even if the laptop is taken away from the customs station and brought into the country. We've had similar rulings in the past, and this one involves laptops that were taken away from the border and brought to another location, 170 miles away, where they were searched. The lower court said this evidence could not be used, but the appeals court reinstated the evidence, claiming that tossing out such evidence "would only reward those individuals who, either because of the nature of their contraband or the sophistication of their criminal enterprise, hide their contraband more cleverly or would be inclined to seek entry at more vulnerable points less equipped to discover them."

But that makes no sense. I mean, if you're good at hiding your "contraband" that's already true. Nothing about this ruling changes that. All this ruling does is say that it's okay for border officials from Homeland Security to search through your stuff without reasonable suspicion. It's not about rewarding people who better hide things, it's about the basic requirement of the 4th Amendment that there be probable cause before the government can take your stuff and search it. Only the dissenting judge seemed to recognize this basic issue in the ruling, which is embedded below, noting: "I add my voice to the chorus lamenting the apparent demise of the Fourth Amendment."

The majority ruling claims that it's not setting up an "anything goes" situation at the border, but it's difficult to see how it's placed any limits at all on Homeland Security. It claims that it's fine to search laptops at the border, because Homeland Security and ICE have a compelling reason to keep material out of the US that it doesn't want crossing the border. But, when it comes to digital content, that's just silly. No one is crossing the border with a laptop to "get content into the country." They can do that using the internet just fine. Claiming that searching the contents of a laptop are like searching a suitcase is as if you are technically illiterate.

Of course, since this is a child porn/child abuse claim, it's easy to say that it's a "good thing" that the search caught this guy -- which it did. And I'm happy he was eventually arrested. But I'm still troubled with how the evidence was collected, and anyone who crosses the border with their computers should be equally concerned. Don't let the fact that this case was about child pornography detract from the important issues about your own privacy rights concerning information stored on a laptop.

Filed Under: 4th amendment, border, computers, homeland security, ice, searches

Judge Says DHS Can't Hang Onto Travelers Laptops To Search Much Later Without A Warrant

from the a-bit-of-good-news dept

We just had a story about a court ruling saying that it was okay for customs agents to take a laptop away and search it somewhere else if they had reasonable suspicion. This has followed a string of controversial court decisions, which say there are no 4th amendment rights against unreasonable search and seizure at the border. On top of that, the Department of Homeland Security has made it pretty clear that it feels it can do whatever it wants at the border.

However, there may be some limits. Another recent court ruling has told Homeland Security that it cannot seize a laptop, hang onto it indefinitely and do searches on it many months later without a warrant. It's not entirely clear where the line lies here. The court basically says that earlier searches of the same laptop were fine, but there was no reason to hold onto it for so many months and then do another search.

Filed Under: 4th amendment, border, customs, laptops, privacy, searches, warrants

American Citizen Detained At Border Due To Drawing Of An SUV

from the think-how-much-worse-it-could-be dept

If you want to understand why we're so troubled by the ACTA treaty that many nations are working on in secret, we just need to look at a story highlighted recently at Boing Boing about an American woman who was detained for a while at the US-Canadian border because she had a drawing of an SUV. The customs officials accused her of being an industrial spy and copyright infringer. In actuality, she's a professor and artist, who was doing an art project involving an SUV.

Of course, what the ACTA treaty would do is give customs officials and border guards even broader authority and a mandate to try to "stop copyright infringement" at the border. It would open people up to inspections for all sorts of things, from computers to personal devices -- and if you thought a random drawing could get someone detained before, just imagine what happens after ACTA is put in place.

The most ridiculous part, of course, is that this really has nothing to do with what the border patrol should be focused on: which is keeping dangerous people or things out of the country. Copyright infringement is meaningless at the border. Infringement happens across borders all the time online. Stopping it physically at the border makes no sense. If someone wants infringement to cross the border, they'll just send it online, rather than carry it on their body. And, until customs and border patrol starts scanning every IP packet at the border, it's a total waste of time and effort to ask border patrol officials to search for copyright infringement. It takes their energy and attention away from the real task at hand of keeping dangerous people out.

Filed Under: acta, border, border patrol, copyright, customs, drawing

Bills Introduced To Protect Laptops At Border Searches

from the restoring-the-4th-amendment dept

As was widely expected following earlier statements from politicians such as Russ Feingold, legislation has now been introduced that would curb Homeland Security's ability to randomly search laptops at the border, instead, requiring them to have a "reasonable suspicion" of illegal activity before they can search or copy a hard drive. This would be a huge step forward in terms of reasonable levels of privacy at the border. While defenders of the random search program claim that it's necessary, they give little proof. You can tell because their arguments could equally be applied to searching a random person on the street as well, as they just give vague platitudes about protecting the country from harm. Yet our country has privacy rights and probable cause for a very good reason. It's nice to actually see some politicians standing up to make sure that Homeland Security live up to those ideals.

Filed Under: border, customs, homeland security, laptops, russ feingold, searches

DHS: Laptop Border Searches Are Bad... Except When We Do It

from the that-may-change-soon dept

The Department of Homeland Security has been actively (though with really weak arguments) defending its policy of searching laptops at the border, even without probable cause. Yet, at the very same time that it was staunchly defending the policy and refusing to testify in front of Congress over it, it was also issuing a report warning international travelers not to take laptops, since foreign governments often search them. You see, when foreign governments do it, it's evil espionage. But when we do it, it's for our own security:

"Foreign governments routinely target the computers and other electronic devices and media carried by U.S. corporate and government personnel traveling abroad to gather economic, military, and political information."

Either way, it looks like DHS's own freedom to search laptops without probable cause may soon get curtailed. The Senate has been making noise for a while about introducing a bill to reign in the laptop searches, and Rep. Loretta Sanchez introduced some legislation in the House last week that would establish clear rules, compared to the anything goes policy currently in existence. Kind of sad that we need special legislation to make it clear that the 4th Amendment should apply at the border, but such is life these days.

Filed Under: 4th amendment, border, laptop searches, privacy, probable cause

EFF Asks Congress To Look Into Border Searches Of Laptops

from the some-rules-would-be-nice dept

Last month yet another court ruled that border patrol guards could search the data on mobile phones and laptops without any probable cause. This was troubling for a variety of reasons, since it basically gives them access to all sorts of things that one would have a normal expectation of privacy over. It's quite different than, say, a stack of papers you have brought with you while traveling overseas. In those cases, you made the proactive decision to take those files with you. Yet, since your computer stores everything, you're exposing much more, and doing it without making the proactive decision to bring those files with you. It's also not clear how this applies to network drives. For example, I store some files on a network drive that appears as just another drive off of my laptop, even though it's not in the laptop itself. Can a customs agent start searching that drive as well? This raises some serious concerns, and the EFF is now demanding some Congressional oversight concerning how these laptop and mobile device searches take place, even suggesting that laws be put in place to prevent the abuse of power by customs agents.

Filed Under: border, customs, eff, laptop searches
Companies: eff

EFF Asks For Details On Border Laptop & Mobile Phone Searches

from the guidelines-please? dept

Last month, we wrote about how more courts have been saying that customs agents could search the content of your laptop or mobile phone upon entering the country. For many, that's a pretty scary thought, considering the amount of personal or confidential information that people often have on their laptops and phones. It's even scarier when customs agents make a copy of that data, as it's not clear what they actually do with it or if they ever delete it. In response, the EFF, along with the Asian Law Caucus, are filing a lawsuit to force the government to give details and guidelines that explain its policies on these searches and what's actually done with the data. It seems like a totally reasonable question -- but given our government's belief in secrecy over all else, expect to find out that this cannot be revealed for "national security" purposes.

Filed Under: border, customers, eff, laptops, search
Companies: eff