Feds Say They Can Search Bradley Manning's Friend's Laptop Because They Can

from the leave-us-alone dept

Back in May, we noted that Homeland Security's ICE group had taken David House's laptop and had kept it for 49 days because he's friends with Bradley Manning, who is accused of leaking the State Department cables to Wikileaks. House was traveling back to the US from a vacation in Mexico and Homeland Security has long held that it can take your laptops at the border for any reason whatsoever. House (with the help of the ACLU) sued the government over this. Not surprisingly, the Justice Department is defending the actions of ICE, basically using the "we did it because we can, so shut up" argument.

There is no basis for the Court to conclude that searches of laptops or other electronic devices at the border should be subjected to a different standard than that for other closed containers. Nor is there a basis for the Court to conclude that Plaintiff’s First Amendment rights were violated by the routine search and detention of his devices at the border.

This is, at best, disingenuous and, at worst, dishonest. There is a tremendous "basis" for a court to conclude that searches of electronic devices differ than searches of a closed container. That's because, as we've discussed at length before, what's in your laptop and what's in a container at the border are entirely different:

• 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.

More to the point: the reason why ICE is supposed to be stationed at the border is to stop those who should not be in the country and to prevent items that should not be in the country from getting it. It is abundantly clear that taking House's laptop furthered neither of those goals, but instead it was done solely in an attempt to further an unrelated legal claim by the government (the case against Manning). It seems crazy to me that the courts do not seem to take into consideration the purpose of a border search in determining whether or not they are appropriate. This border search had nothing to do with the border and everything to do with the feds using a questionable opportunity to seize data that it could not otherwise get access to via legal means. If House's laptop were really crucial to the case, then the Justice Department should have gotten a warrant to view it, rather than use this loophole at the border. The fact that they did not get a warrant shows pretty clearly that they knew outside of the border situation, they had no right to look at the contents of House's hard drive.

On a separate note, the reason given for having to keep House's laptop for so long? Because the laptop ran both Linux and Windows and the tech geniuses at Homeland Security had trouble understanding how to deal with that.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures

Court Refuses To Issue Injunction Stopping Secret Web Spycams From Running On Rental Laptops

from the really? dept

A couple months ago, we wrote about the class action lawsuit from a family who discovered that the company from whom they had rented a laptop, Aaron's, had secretly installed spying software that would surreptitiously turn on the laptop's webcam, take pictures, and send them back to the company. That seems like a pretty big privacy issue, and a no brainer for the judge in the case to issue an injunction, getting the company to stop using such software until the case is sorted out.

But, no such luck. The judge refused to order an injunction, pointing out, first of all, that the people suing no longer had that laptop, so there was no additional harm to them. As for everyone else in the class, there's this stunner of a line from the judge:

Moreover, it is purely conjecture that the other members of the putative class will be subjected to remote access of personal information.

That doesn't make sense to me at all. If they're not subject to remote access, then such an injunction wouldn't matter anyway. Yet, if they are subject to the remote access, then the injunction can help. In other words, the judge's logic is backwards: it might not happen, so let's not try to prevent it? The court could still issue the injunction -- and if people aren't subject to that kind of remote access to their personal information, then nothing would happen.

Separately, the judge suggested that the family has a weak case, because the CFAA computer hacking law they're relying on requires interception of electronic communications... and the court isn't sure that snapping a photo of you captures electronic communications. That certainly does raise an interesting legal question. I'm not a fan of the CFAA, but if you're just spying on someone via a webcam, is that the same thing as spying what's on their desktop? I think the common sense solution is that of course both should be seen as violating the law... but it is a unique situation.

I'm not the only one surprised and confused by this. Internet lawyer Venkat Balasubramani was surprised as well:

Yikes! Privacy class actions seem out of control to me, but I'll admit even I was surprised by this result. I'm equally surprised that the Aaron's-affiliated defendants did not all just stipulate to suspending use of the software until things were sorted out. (Aarons, Inc. did, but its franchisee Aspen Way did not. In fact, Aspen Way did not participate in the hearing, which makes the denial of injunctive relief all the more perplexing.) Setting aside whether the court was correct in its view of the merits of the case, the court takes an unduly restrictive view of the facts when it states that no "interception" of an electronic communication occurred because there was no evidence that Mr. Byrd was online or communicating with someone else when the image in question was captured. Surely, given the ex-employee's testimony as to what type of information was viewed through use of the software, it's fair to presume that the Aspen Way employees are not sitting around making sure that the capture only occurred while the computer user was offline or not communicating with another person.

But seriously, think about what this ruling could mean. It could certainly open up the opportunity for more software products to secretly turn your camera on, claiming it's fine because there's no "communication" going on.

Filed Under: laptops, spying

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

Friend Of Bradley Manning Sues Homeland Security For Seizing His Laptop

from the land-of-the-free dept

Connecting two separate stories we've been covering here, it appears that the ICE group of Homeland Security seized the computer equipment of David House -- a friend and supporter of Bradley Manning -- as he flew back into the country last fall. As you may recall, DHS/ICE have been pushing hard for the right to seize and search laptops at the border for any reason (or no reason at all). Courts have mostly said this is okay, with a few exceptions. In this case, DHS didn't return the equipment for 49 days, and that was only after House had the ACLU send a "strongly-worded letter" demanding the return of the equipment. Again, while the courts have generally deemed such searches to be okay, the ACLU appears to think that this particular search is a perfect example of why these searches are massively overreaching -- so it has teamed up with House to sue DHS and the US government.

It certainly could make for an interesting case and an interesting challenge to DHS's claims that it can ignore the 4th Amendment at the border. The ACLU seems to be suggesting that since the seizures of his devices had nothing to do with customs, immigration or terrorism, but were politically motivated, then they violate both the 1st Amendment and the 4th Amendment. It definitely makes for an compelling argument, but I'd guess the courts will (yet again) defer to the US government on this one and say it was okay.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures

One Man, One Stolen Laptop... And Twitter, Prey (And A Purple Sarong?) To The Rescue

from the and-a-purple-sarong dept

A whole bunch of folks have been sending in random versions of the story of how author Sean Power recovered his stolen laptop despite being in another country, thanks to the power of social media, some open source software and some good samaritans. The "short" version is that Sean had his laptop stolen a few days ago in New York City, just a day before he had to go to Canada for a few days. He had some open source anti-theft software on there, called Prey. I'd never heard of it, but it gets excellent reviews. Anyway, after not being alerted to anything for a few days, Sean suddenly was notified that someone was using his laptop -- and he mentioned it on Twitter. From there, it helps to follow the story on Twitter, and thankfully Ryan Ozawa used Storify to post the relevant tweets: You really should read the story as it happens, but basically some girl got wind of the story (it's still not entirely clear how... since she's not on Twitter), and went to the bar where the guy with the laptop was. She befriended some of the bartenders and others at the bar and found out that the guy with the laptop had some sort of connection with the bar. Reading through the various tweets, there is some confusion over who's who in this story, but the nameless girl in the purple sarong was soon backed up by another guy, Nick Reese, who just saw the story unfolding on Twitter and (as a brand new NYC resident) decided to jump in. The girl in the purple sarong apparently flirted with one of the two guys (Max) with the laptop, and got his business card. Sean had called the police, but they refused to go, since Sean hadn't filed a police report (he claims he didn't have time before leaving for Canada). Eventually, Sean called the phone number on the card, leading Max to call the other guy at the bar (Paulo) just as Nick and Purple Sarong Girl (PSG?) were confronting him. After some back and forth, Nick pulled out his phone and showed Paulo the photo of Paulo on the laptop from the webcam that Sean had gotten from Prey and posted to Twitter. Not surprisingly, that quickly led to the laptop (and the laptop bag) being handed over...

Nick and the girl in the purple sarong then put up a video of what happened which is both mildly entertaining and mildly frustrating (and it's not hard to assume that the girl has consumed a fair bit of alcohol by this point -- and I think I have to agree with the Village Voice that she may be the most annoying woman in the world) Update: The video has been set to private. Reese is claiming it's to "protect the identity" of the girl -- which seems odd... All in all it's quite a story. There have been a few people suggesting this is just a publicity stunt for Prey, but plenty of folks are insisting that's not the case. To be honest, even if it is a publicity stunt for Prey, I gotta say that it's fantastically well-done, and amazingly compelling. I wouldn't care if it were a publicity stunt, because then the story would be about how to make brilliantly compelling marketing... But, again, most people are insisting that this was all real, and then the story is just about the wonders of modern technology combined with good people. A story of our times...

Filed Under: community, laptops, social networks, stolen, tracking down

ACLU Suing Homeland Security Over Laptop Searches... Even Though Other Cases Have All Failed

from the first-amendment-vs.-fourth-amendment dept

Well, here we go. As was widely suspected, the ACLU is now suing homeland security over its laptop search policies at the border. If you haven't been paying attention to this topic, Homeland Security's policy has been that it can search anything you're bringing over the border into the US, including electronic devices. Their argument is that this is just like searching your luggage. This argument doesn't make much sense, frankly, because things that you bring in your luggage, you put there by choice, with the express purpose of bringing it over the border. You make a positive decision to include it. Things on your laptop, however, are there because they're just there on your laptop. And it can include all sorts of stuff. The argument that border patrol is actually protecting the border here makes little sense, because you could just as easily send any data on your computer over the internet and no border control is going to stop it.

This issue has been challenged in court a few times, with courts repeatedly saying that the 4th amendment rights against unreasonable searches does not apply at the border, since you're not yet in the country. This challenge is a bit different, however. Rather than a 4th Amendment challenge, the ACLU is going with a 1st Amendment challenge, saying that these searches violate an individuals rights to free speech and privacy, and specifically highlighting reporters who need to keep information confidential. While it's a different legal argument, I still don't see it passing legal muster. You still have the same problem of not "really" being in the country yet, and thus, not really being protected by the Constitution.

What's really silly, of course, is that Homeland Security knows that border laptop searches are a bad thing. It's why they've issued a warning to travelers about other countries doing laptop searches at the border. Apparently, they don't feel the same way when it comes to them getting to go through your laptop, however.

Filed Under: aclu, first amendment, fourth amendment, homeland security, laptops, searches
Companies: aclu

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

ACLU Looking To Challenge Homeland Security On Border Laptop Searches

from the gotta-find-someone-first... dept

Slashdot points us to the news that the ACLU is looking to challenge Homeland Security's policies that it has pretty free reign in searching your laptop at the border. Now, to date, the courts have said that this is perfectly legal, so it's not clear what is "new" that the ACLU hopes to prove. However, last year, after revealing that the new administration still stood by these border computer searches, it also revealed some data on laptop searches, suggesting they are quite rare -- but do still happen. However, the ACLU is seeking people whose laptops were searched, but that looks like a pretty small number of people. While I agree that these searches seem quite questionable for a variety of reasons, I just don't see this lawsuit being effective.

Filed Under: border search, homeland security, laptops
Companies: aclu

Case Appealed Because Jurors Were Allowed To Use Prosecutor's Laptop

from the that-doesn't-seem-very-smart dept

We've been seeing all sorts of odd issues in the courtroom as the court system comes to grips with modern technology like mobile phones and the internet, which introduces some new challenges. However, this one is really strange. Michael Scott points us to a story of a trial where the defendant appealed because the jury was allowed to use the prosecutor's laptop to review evidence without supervision, leading to questions of whether or not the jury was able to view other material that had not been entered as evidence in the case. The case itself involved a fight at a gas station, and the evidence on the laptop was the surveillance camera video taken of the fight. In an odd exchange, the prosecutor said he was fine with having the jury look over the laptop, he admits it's actually his son's laptop and probably didn't have anything else on it, other than his son's political science notes. For that reason, the appeal didn't get far, since the original court and the prosecutor had established on the record that there was nothing else related to the case on the laptop, but it still makes you wonder why the jury was allowed to use the prosecutor's laptop without supervision. Why not get another laptop? Also odd, is that I don't quite understand what the prosecutor means when he says he can't just take the CD with the video out of his laptop:

Your Honor, the CD is in my laptop. If they want to watch it, I don't have any problem with the CD they can't obviously watch anything without the CD. My concern if I take it out, shut down the computer I am not here there is no one to gather it back up. So I would suggest we leave it here in the event they want to look at it they come back and look at it.

Why couldn't they take the CD out and put it into another laptop?

Filed Under: juries, laptops, trials

Homeland Security Still Plans To Search Laptops At Borders With No Probable Cause

from the ain't-no-due-process-at-the-border dept

There's been plenty of concern over the past few years with regards to Homeland Security's claims that it has the right to inspect the contents of your laptop at the border, even without any probable cause. While it may be well established that the 4th Amendment doesn't apply until you're actually in the country, that doesn't mean there aren't some serious questions raised. I, like many others, have no problem with border searches of actual physical containers and luggage at the border. That makes perfect sense, because it's physical goods that you're purposely trying to bring directly into the country. You packed them with the specific idea of bringing them into the country.

But stuff on your laptop is different in two very important ways:

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.
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.

Thus, it makes little sense for border control to search the contents of your laptop other than if the gov't wants a random "free pass" at checking out some content about you. DHS' insistence that it needed the right to search laptops at the border made little sense, and some of our elected officials pushed out bills to curb such border searches, though none have passed.

Instead, the new head of DHS has "revised" the rules for laptop searches, but they're only slightly better in that the old rules were "anything goes," while the new rules are "we're still searching laptops, but we have a few rules." The main components of the new rules are that you're allowed to be present in the same room as your laptop, phone or device as it's being searched -- but not necessarily to see what border patrol is doing. Also, they can't keep your laptop for more than five days, which seems pretty damn long to me. Though, as some note, this basically means that you should make sure any encryption on your laptop takes more than five days to crack.

DHS boss Janet Napolitano's reasoning for the searches is hardly compelling:

"Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,"

Um... right, but, again, the contents of the a computer laptop can easily enter the United States via the internet with no border control process whatsoever. The whole claim that this has anything to do with screening materials entering the US is totally bogus.

On top of this, the other thing that's not at all clear is how far the "search" can go. With a growing number of "cloud" based services in use, many of which act as if they're local, can the border patrol search those as well? For example, I use Jungledisk, which gives me a virtual drive that shows up in my file system as if it were a local hard drive, even though it's hosted in some data center somewhere. It looks like a local drive... but it's not actually on my laptop. Would border patrol have the right to search that, even though the contents of that drive are not actually traveling across the border?

Filed Under: border search, homeland security, laptops