2009 DHS Document Says Border Patrol Can Search/Copy The Contents Of Your Device Just Because It Wants To

from the all-about-that-privacy-you-won't-be-allowed dept

FOIA clearinghouse MuckRock has scored another revealing document, this time from Customs and Border Protection. As we're well aware, the US border isn't technically considered to be part of the United States, at least not as far as the Constitution is concerned. All bets are off, 4th (and others) Amendment-wise. If you're traveling with anything -- whether its a vehicle, suitcase or laptop -- expect it to be searched.

What MuckRock has obtained is the DHS's Privacy Impact Assessment of the CBP's search policies. The only thing seen of this near-mythical document to this point has been a two-page summary of the report's contents, released nearly three years after its border search policy went into effect.The assessment basically says privacy will be severely impacted… and not much else. To do otherwise is to open the borders to terrorists, illegal immigrants, drug runners, child porn traffickers... at least according to the talking points. If you're none of the above, you're not exempt from in-depth warrantless searches of your person and belongings, including laptops and other electronic devices.

Based upon little more than the opinion of a single US Customs and Border Patrol (CBP) officer, any device can be searched and its contents read. With approval from a supervisor, the device can be seized, its contents copied in full, or both.

These opinions, also known as "gut feelings" and "mental coin tosses" (the latter extremely popular with the TSA's Behavioral Detection Officers), are all it takes to initiate a very intrusive search.

Part of this we can blame on the courts and their deference to national security fears.

Under DHS authorities to conduct border searches, travelers' electronic devices are equally subject to search as any other belongings because the information contained in them may be relevant to customs and immigration inspection processes and decisions. While the terms "merchandise" and "baggage" are used, the courts have interpreted border search authorities to extend to all of a traveler's belongings, including electronic devices and the information in such devices.

Beyond the hunches that trigger warrantless searches of electronic devices, the CBP also has the authority to demand travelers translate foreign languages and/or decrypt files.

Demand for Assistance: During a border search, ICE and CBP have specific statutory authority to demand assistance from any person or entity. For searches of electronic devices, CBP or ICE may demand technical assistance, including translation or decryption or specific subject matter expertise that may be necessary to allow CBP or ICE to access or understand the detained information.

In some cases, travelers will be notified that their device has been searched. In others, the CBP and ICE will withhold this information from the person who owns the searched device. This includes cases where the agents image the entire contents of the device in order to perform a search later. In fact, in most cases where this is done, the person is cut out of the informational loop.

Instead of detaining the electronic device, CBP or ICE may instead copy the contents of the electronic device for a more in-depth border search at a later time. For CBP, the decision to copy data contained on an electronic device requires supervisory approval. Copying may take place where CBP or ICE does not want to alert the traveler that he is under investigation; where facilities, lack of training, or other circumstances prevent CBP or ICE from performing the search at secondary inspection; or where the traveler is unwilling or is unable to assist, or it is not prudent to allow the traveler to assist in the search (such as providing a password to log on to a laptop).

And, again, this sort of detainment/search can be triggered by nothing more than an agent's feelings about the person being vetted. And while a CBP officer may have to check with a supervisor before imaging a device, ICE agents are able to self-approve intrusive searches and seizures.

As federal criminal investigators, ICE Special Agents are empowered to make investigative decisions based on the particular facts and circumstances of each case. The decision to detain or seize electronic devices or detain, seize, or copy information therefrom is a typical decision a Special Agent makes as part of his or her basic law enforcement duties. However, although no additional permission is required at this stage, Special Agents must comply with precise timeframes and supervisory approvals at further stages throughout each border search.

While there are oversight guidelines in force, they aren't set in motion until after the copying/searching has already been performed.

As the PIA notes later, the DHS's agencies don't care whether it's papers in a briefcase or the entirety of your digital life housed within a smartphone. Either way, it claims to have the right to search, seize and copy data without probable cause. Or so it did until recently.

The 9th Circuit Court's 2013 decision on border searches of electronic devices undercuts a lot of the assertions in this 2009 DHS document. Most importantly, the decision forces the government to stop pretending the contents of a laptop or cellphone are no different than the contents of a briefcase or suitcase. (h/t to Daniel Nazer for pointing out this superseding decision)

The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library.... Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.

The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”.... The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”... These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”

This decision partially restores the Fourth Amendment to the Constitution-free Zone -- at least the portion covered by the Ninth Circuit. The decision doesn't forbid these searches. It just holds them -- and the CBP/ICE -- to a higher standard than agents' hunches.

So, in all the principles (transparency, minimization, information safeguards) listed in the DHS's 2009 Privacy Impact Assessment of warrantless border searches, there's not a single one devoted to warrants, warrant requirements or establishing reasonable suspicion. It took a court to reach that obvious conclusion and it took a court's explanation as to why a laptop isn't a briefcase to force the CBP to stop behaving like a law unto itself in the Ninth's jurisdiction. A privacy impact assessment that doesn't mention Fourth Amendment implications is a waste of 50 sheets of paper.

Filed Under: 4th amendment, border, dhs, download, laptops, privacy, search

Appeals Court Tells ASCAP: A Download Is Not A Performance

from the get-it-straight dept

A few years back, we covered the legal fight pitting ASCAP against Yahoo and RealNetworks, where the two internet companies were told to pay up based on a ridiculously arbitrary fee formula, including a totally made up multiplier called the "music-use-adjustment-fraction." The really scary part was that it calculated the revenue based on all of Yahoo's revenue. So, yes, even though Yahoo makes most of its revenue in ways that have nothing to do with music, its total revenue is used as part of the calculation. The one good thing that came out of the legal fight was the court making it clear to ASCAP that a download is not a performance, which requires a separate fee. As you may recall, ASCAP has been trying to claim just about anything involving music is a "public performance," in a weak attempt to get more cash.

Both sides appealed. Yahoo and RealNetworks appealed the crazy fee formula, and ASCAP appealed the claim that a download was not a public performance. The Second Circuit appeals court has now ruled and gone against ASCAP on both issues. It reaffirmed that a download is not a public performance (and thus, performance rights fees are not applicable) and rejected the bizarre calculation method used, as not "adequately supported" as being reasonable. A few highlights:

The fact that the statute defines performance in the audio-visual context as "show[ing]" the work or making it "audible" reinforces the conclusion that "to perform" a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work....

The court also scolds ASCAP for blatantly misreading other opinions on what constitutes a public performance and points out that ASCAP appears to "misread the definition of 'publicly,'" noting that ASCAP's definition of a public performance seems to "render superfluous" the term "a performance" in the Copyright Act. Ouch.

As for the royalty fees, the court is pretty clear that it doesn't buy the formula being used:

First, the district court did not adequately support the reasonableness of its method for measuring the value of the Internet Companies' music use. Second, the district court did not adequately support the reasonableness of the 2.5% royalty rate applied to the value of the Internet Companies' music use.

In other words, you don't just get to make up numbers out of nowhere.

That said, the court does say that it isn't necessarily against using such a "music-use-adjustment-fraction," it just needs the number to actually be supported. This is unfortunate, as it leads to improperly using non-music revenue as part of the calculation for how much should be paid for the music license. However, the court tries to deal with this by saying that the reasonable support needed would justify what the multiplier factor would be. Its main concern with the lower court's ruling was that it didn't take this into account and used a measure that made little sense (time spent listening to streams) which had little bearing on ad revenue:

The district court's MUAF accounts for the value of Yahoo!'s music use by using the amount of time that music is streamed. Streaming time, however, neither drives nor correlates with Yahoo!'s advertising revenue. The record evidence makes plain that Yahoo!'s advertising revenue model more accurately correlates with the number of times a particular page is accessed by users than to the duration of streaming time.

Filed Under: copyright, download, performance, royalties
Companies: ascap, realnetworks, yahoo