Canadian Border Agents Also Routinely Demanding Passwords From Travelers And Searching Their Devices

from the slightly-more-apologetic-rights-violations dept

In sad but unsurprising news, Canada is no better than the US when it comes to ignoring its citizens' rights at the border. The Canada Border Security Agency (CBSA) has also been given the green light to perform invasive, warrantless searches of people's devices at the border. And, like its US counterpart, it seems to be using this power frequently.

The CBSA said that between November 2017 and March 2019, 19,515 travellers had their digital devices examined, which represents 0.015 per cent of all cross-border travellers during that period.

Whether or not these numbers are on the rise is still a mystery. The CBSA only began tracking this statistic in late 2017 after Canada's privacy commissioner opened an investigation into this practice. Concerns were raised about the CBSA's searches, which involved cloning devices for later examination and seizing devices if travelers refused to hand over passwords.

Unfortunately for the CBSA, it searched the wrong person's device. A legal challenge is being raised by someone well-equipped to raise legal challenges, as CBC News reports.

"The policy's outrageous," said Toronto business lawyer, Nick Wright. "I think that it's a breach of our constitutional rights."

His thoughts follow a personal experience. After landing at Toronto's Pearson Airport on April 10, he said the Canada Border Services Agency (CBSA) flagged him for an additional inspection — for no stated reason.

Wright had just returned from a four-month trip to Guatemala and Colombia where he studied Spanish and worked remotely. He took no issue when a border services officer searched his bags, but drew the line when the officer demanded his passwords to also search his phone and laptop.

Wright refused, telling the officer both devices contained confidential information protected by solicitor-client privilege.

The end result was CBSA agents confiscating Wright's phone and laptop with the assurance they would be sent to a government lab in order to have their password protection cracked. Replacing them cost Wright $3,000.

Wright claims this is a violation of Canada's charter of rights. Canadian courts, like those in the US, have decided no involuntary sacrifice of rights is too great when national security is on the line. The CBSA, for its part, has greeted the tech future by pretending it's still 1975, and that searching a phone is no different than searching a briefcase or the trunk of a car.

For all of that, this is probably the right time to challenge this custom of customs officials. The nation's top court has already drawn a distinction between briefcases and cellphones, saying the latter contains vast amounts of information that "touches a person's biological core." And at least one provincial court has declared Canadians' rights are not null and void simply because they're at a border crossing.

The CBSA's statement to CBC News says these suspicionless searches that can result in the indefinite seizure of citizens' devices are "reasonable and necessary" to keep Canada secure. But they seem to be neither. There's nothing "reasonable" about invasive searches completely divorced from articulable suspicion. That's the very definition of "unreasonable." And as for necessity, all the CBSA has to offer is that 38% of its 19,000+ device searches "uncovered evidence of customs-related offences." This means most searches don't recover any evidence of anything and that things like undeclared goods are somehow threatening to the country's security.

It's time for border agencies to stop pretending the only way to secure a nation is to discard its citizens' rights. And it's time for courts to stop deferring to national security mantras and stick up for the rights they -- and the rest of the government -- are supposed to be protecting.

Filed Under: border searches, canada, device searches, electronics, passwords, privacy

Electronic Warrants And Roadside Blood Draws Are The New Normal For DUI Checkpoints

from the jetsons-were-so-wrong-about-so-much dept

A few years ago, the National Highway Traffic Safety Administration brought down the heat on itself by teaming with local law enforcement to set up roadside blood/saliva draws. The plan was to compile data on impaired driving, but the "voluntary" sample stations were staffed by cops who flagged motorists down, leading many to believe this was just another DUI checkpoint.

Now that the NHTSA is out of the picture, local law enforcement is taking care of this itself. Only it very definitely is mandatory and any data-gathering would be incidental to the real purpose of these checkpoints: arresting impaired drivers. It's 2019 in America and we can only now proudly say we're the Home of the Roadside Blood Draw.

It was about 6:30 on a Friday night in January when Phoenix Police Det. Kemp Layden pulled over a white Jeep Cherokee that was speeding and weaving in and out of its lane.

The 47-year-old driver spoke slowly, his eyes were red and watery, and his pupils were dilated. The inside of the Jeep reeked of marijuana, and the driver failed a field sobriety test, which includes walking heel-to-toe and standing on one leg.

He told the officer he had smoked marijuana a few hours earlier and taken a prescription sedative the night before, police say. The man passed a portable breath test — he wasn’t drunk. But Layden suspected he was impaired by drugs, which the test can’t detect.

A DUI police van equipped with a special chair and table for blood testing pulled up. The man refused to submit to a blood draw. So Layden grabbed his laptop and filled out an electronic warrant, or e-warrant, which was transmitted directly to a judge.

Within 10 minutes, Layden had a search warrant. Another officer drew the man’s blood. A lab report later confirmed he had active THC and a sedative in his blood.

Roughly 80 minutes after he was stopped, this driver had traded his vehicle for a DUI citation.

This will become more common as time goes on. With the legalization of marijuana use in several states, there's a new form of impairment that can't be caught with a breathalyzer. While there's definitely a law enforcement interest in limiting impaired driving, there's also a lot of fiduciary pressure to continue to bust drivers generate revenue even when the driver's drug of choice isn't alcohol... and the driver may not even actually be impaired.

This is leading to two things: an increase in electronic warrants sent at odd hours to judges who will likely approve any boilerplate sent from a DUI checkpoint... and a whole bunch of minimally-trained officers running roadside blood drives out of police vans.

The good news is some training is actually happening. The bad news is certified training is the exception, not the rule.

At least nine states have law enforcement phlebotomy programs: Arizona, Indiana, Maine, Minnesota, Ohio, Pennsylvania, Rhode Island, Utah and Washington state, and Illinois is starting one, according to the national highway safety agency.

That doesn't mean every ad hoc blood draw is a communicable disease vector staffed by officers using your arm to rack up OJT hours. In Arizona, for instance, officers must have 100 hours of training before they perform blood draws and must perform the job in OSHA-approved environments. But that doesn't mean every agency is as demanding as the ones in Arizona are, so the experience may be far more unpleasant than a normal DUI checkpoint.

[S]ince officers aren’t in the healing profession, [defense attorney Donald] Ramsell said, they’re not concerned about pain reduction or hitting a vein. He cited the case of a client arrested in Arizona who had a blood draw in a police DUI van.

“The officer poked him at least 15 times, and because he has a medical condition it was next to impossible to draw enough blood to fill a 10-cc tube,” he said, referring to the size of the tube in cubic centimeters. “Those knuckleheads just kept poking the hell out of him. They only got 3 ccs.”

The only thing keeping this from being even worse is a 2016 Supreme Court decision. Without it, these blood draws wouldn't even have a hasty judicial scrawl at the bottom of a dozen pages of boilerplate authorizing Officer Nurse to take blood from drivers' arms. Meanwhile, officers are touting the speed of this new dystopian feature as a win for the public, since the guilty parties will be able to processed into the criminal justice system in less than half the time.

According to Utah Highway Patrol Trooper Janet Miller, a certified phlebotomist, “It’s been a great tool not only for law enforcement but for the individual placed under arrest.

“Instead of spending three to six hours with the officer, it’s been cut down to one to two,” she said. “They can get to the jail sooner and get out sooner.”

Win-win, I guess.

Filed Under: 4th amendment, blood draws, dui, dui checkpoints, electronics, police, searches, traffic stops, warrants

Court Says Probation Violations By Teen Don't Justify On-Demand Warrantless Searches Of His Electronics

from the little-bit-of-4th-and-1st-implications-all-tied-up-together dept

It's assumed (wrongly) that minors have few, if any, Constitutional rights. The error is easy to make because they're just kids. They can't drink, smoke, vote, or even serve their country/secure these own valuable freedoms by [checks sources] aiding in the increase of opium production in foreign countries. "Hundreds of government officials can't be wrong!" someone is sure to exclaim, being just as wrong as the hundreds half-assedly cited in their stinging rebuttal.

Minors do have rights. They're subject to more limitations but they're far from nonexistent. But that doesn't stop prosecutors, cops, and school officials from pretending "limited" equals "zero." A case highlighted by FourthAmendment.com shows a court pushing back against this assumption, which took the form of an overly-invasive probation condition slapped on a minor following a search of the student which uncovered a small knife, rolling papers, and a lighter.

The incident leading to the search began when the student fell asleep during class, which is possibly one of the most ordinary things a student can do. The student admitted he had smoked marijuana the night before (also possibly one of the most normal things a high school student can do), but hadn't smoked any that day or on school property. He was asked to consent to a search and he volunteered he had a knife in his possession. The search uncovered the rest of the "contraband." The 15-year-old was then arrested, detained, and placed on home detention.

Had that been the end of it, there would have been nothing to write about. But the dispositional order dealing with probation conditions added a whole bunch of unnecessary stipulations given the violation. This occurred when the minor violated his probation conditions by using marijuana and Xanax. Subsequent violations occurred -- all of them drug-related. A few months later, the minor appeared to be back on the road to the state's good graces. He was doing well in school and had landed a job. For whatever reason, the state decided to punish the minor for getting his life back together. This hearing added stipulations that appear to be far more vindictive than curative, and they're certainly anything but Constitutional. From the decision [PDF]:

In the report submitted for the September 7, 2016 dispositional hearing, without explanation, the probation officer recommended adding an electronics search condition.

[...]

Later the same day, the juvenile court judge issued a signed written disposition order, describing the electronic search condition in greater detail, using the following text, which probation had recommended: “[Minor must] submit all electronic devices under [his] control to search and seizure by the probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion, including all logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by [Minor], including but not limited to cell phones, computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices. [Minor] shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts as requested by any probation officer . . . .”

The minor challenged this order on constitutional grounds, citing its needless violation of his privacy. Given the state's unwillingness to specify which of the offenses these conditions addressed, the court finds the minor has a solid point.

We agree with Minor that the electronics search condition imposed here is unconstitutionally overbroad because it is not narrowly tailored to achieve its ostensible purpose or to meet Minor’s needs. [...] Any connection between Minor’s offenses and his usage of electronic devices is speculative and, absent such evidence, the electronics search condition is not tailored to meet Minor’s specific needs.

As the court points out, there are less intrusive ways of achieving the same ends and it's highly unlikely blanket search permission for every single electronic device owned by the minor is the least intrusive option. It's also unlikely blanket search permission would somehow prevent the minor from obtaining drugs or alcohol.

Not only that, but the state's arguments for this supposed necessity ignored evidence showing more probation stipulations weren't needed to keep the minor from engaging in criminal activity.

In an interview with probation before the September 2016 dispositional hearing, Minor acknowledged having made poor decisions in the past, but stated he had new motivation to complete treatment and probation going forward, and that he had a new job, which was making a positive impact on his life.

Minor’s statements about his mindset were supported by his school’s report that it had no concerns with Minor’s behavior, that Minor arrived on time, completed all of his work, was “doing great,” and was “exhibiting a positive attitude.” Minor’s mother and his treatment program provided similar accounts. This information does not support the conclusion that only by subjecting Minor to a new, exhaustive, and invasive search condition—allowing probation to review every electronic device under his control, including any “gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, [and] external hard drives” and to access all of his “passwords, passcodes, password patterns, fingerprints, or other [similar] information”—could Minor be deterred from future use of controlled substances.

That strikes these conditions from the minor's probationary terms, restoring the privacy the state tried to take from him. The state insisted on defending this Constitutional violation despite having zero precedential support to cite. The closest it could come to a prior case in its favor involved a gang member who promoted his gang and its activity on social media when not using those platforms to issue threats to police officers and their families. That's not even close to the same level of severity in observed behavior. As the minor notes in his case, the state AG didn't even provide evidence the minor owned any of the devices the state decided it needed access to. But when you're playing Constitutional poker with someone else's money, why not take a flier on bullshit probation orders?

Filed Under: electronics, fifth amendment, fourth amendment, probation, probation violations, teens, warrantless searches

TSA To Require Separate Scanning Of Electronics 'Bigger Than Cellphone'

from the brought-to-by-minds-'smaller-than-most' dept

The TSA is still in the business of making sure none of your stuff is inside other stuff. Liquids. Laptops. Other things that confuse/frighten failed mall cops. After engaging in a "successful" trial program in ten airports, the TSA is expanding its theater troupe's infliction of misery to airports around the nation.

To ensure the security of airline passengers and the nation’s airports, the Transportation Security Administration (TSA) is implementing new, stronger screening procedures for carry-on items that require travelers to place all electronics larger than a cell phone in bins for X-ray screening in standard lanes. Following extensive testing and successful pilots at 10 airports, TSA plans to expand these measures to all U.S. airports during the weeks and months ahead.

[...]

As new procedures are phased in, TSA officers will begin to ask travelers to remove electronics larger than a cell phone from their carry-on bags and place them in a bin with nothing on top or below, similar to how laptops have been screened for years. This simple step helps TSA officers obtain a clearer X-ray image.

The press release comes with zero clarification on what "larger than a cellphone" means. Over the last eight years, the size of my smartphone has increased to "larger than a cellphone" when compared to the 2009 iteration. Is this phone/not phone call going to be made by screeners? Is a flip-phone-using former gym teacher who changed careers after reading a particularly effective pizza box ad going to decide travelers' smartphones are nothing more than small tablets and force them to drop them in a bin where they can be pawed at by TSA probers further down the security line?

Because that's exactly the sort of thing we don't need: more TSA personnel/policies stating that bigger is more dangerous. We already have the problem with laptops because the TSA's math says potential threat level is directly proportionate to screen size.

If this doesn't sound like much fun or make much sense, not to worry: the TSA will sell some rights and privileges back to you after a background check and a personal check (from you to the TSA). All others will be expected to dump their electronics in bins and engage in fruitless arguments about whether the phone they're carrying is a cellphone or "larger than a cellphone."

But that's ok, because the TSA is oh so concerned about you, dear traveler:

“Whether you’re flying to, from, or within the United States, TSA is committed to raising the baseline for aviation security by strengthening the overall security of our commercial aviation network to keep flying as a safe option for everyone,” said TSA Acting Administrator Huban A. Gowadia.

HAHAHAHAHAHAHAHAAAAAAA!!!

Hahahahaaaa!

Haha… oh my god, she's serious.

God bless the TSA, where enhanced screening is something to be inflicted on travelers, but never job applicants.

The TSA notes this change "may" cause delays during screening, which can be read as "will," especially as everyone gets the hang of the latest thing the TSA's doing (including the TSA). More items will be headed to checked bags, which works out for airlines. And more people will be piled up at security checkpoints, which works out well for terrorists.

Filed Under: electronics, scanning, security theater, tsa

DHS Confirms There Will Be More And Greater Intrusiveness During Border Searches

from the welcome-to-America,-land-of-the-heavily-surveilled dept

DHS boss John Kelly continues to push for ultimate government intrusiveness, whether at the borders where the CBP will handle the getting all up in your everything, or at airports, where the TSA will examine the hell out of travelers' electronics while overlooking explosives, guns, and other more dangerous contraband.

The DHS is no longer perched atop a slippery slope. It's enthusiastically sliding down it with both hands in the air. The Center for Democracy and Technology asked the DHS the same questions a few legislators have: what are you doing to protect the rights of US citizens at the border? The answer, in the form of a noncommittal letter, is an official shrug of indifference.

Back in March, CDT, along with more than 50 other civil society groups and trade associations, wrote a letter to Department of Homeland Security Secretary John Kelly urging that he back away from DHS proposals to use border searches as a tool to collect passwords and other social media information. Today we received a response. Unfortunately, the reply largely ducks our concerns, ignoring the main issues at play and doing little to shed light on the government’s plans or put to rest controversy about its contentious proposal. This non-answer is deeply troubling because it seems to indicate that Customs and Border Protection (CBP, which is a sub agency of DHS) is doing nothing to change course from a recent, dangerous trend: the use of the U.S. border as a tool to conduct broad surveillance.

The letter [PDF] from the DHS explains almost nothing, while assuring CDT all of this is completely above board. But, as Chris Calabrese of CDT points out, we've come a long way from physical strip searches. Searches of travelers' electronic devices are far more intrusive. And yet, the DHS still seems to feel device searches are no different than taking a look in a vehicle's trunk or opening up a suitcase. Check out the spin job being done here: intrusive device searches are just a team effort on behalf of America and Americans should just be more willing to pitch in.

All items entering the country are subject to inspection, and CBP may seek the traveler's assistance in presenting his or her effects including electronic devices in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices. In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take Iawful measures, as appropriate, to inspect the device and its contents consistent with longstanding authority to perform border searches. These practices are consistent with various laws authorizing searches and detention…

The DHS has reduced "exposing your entire digital life" to "presenting effects." This isn't an answer to CDT's queries. It's just propaganda.

The DHS also unhelpfully points to a 2009 Privacy Impact Assessment, which covers the search of electronic devices at the border. Again, this does little more than inform readers many of their rights are gone and won't be coming back. After spending several pages saying DHS/CBP will do all it can to minimize intrusion, protect harvested data/communications, and require badges and such to prevent unlawful access to seized digital goods, the report closes with the sheet handed to travelers when their devices have been taken by CBP officers. It states, in plain English, that CBP officers can perform suspicionless searches of electronics and hope it morphs into a justified search by the time the CBP is done searching them.

CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies.

As Calabrese points out, none of this seems likely to make the nation safer, much less minimize Constitutional violations.

As we told DHS back in March, the practical result is that border crossing will require full digital disclosure – exposing not just our personal information but also the tools we use to bank, communicate, and participate in our digital lives. This will not just infringe on free expression and privacy, but will also expose our personal information to the federal government who has a terrible track record of keeping such information safe. Ironically, it’s unlikely to have any security value, since bad actors conceal their accounts and the government drowns in information from innocent people.

The DHS has no answers. Things will get worse and are unlikely to get better. It's easy for government power to expand but almost impossible for it to retract. Since terrorism will always exist in one form or another, the government will always be able to justify mission creep and the further diminishment of civil liberties.

Filed Under: border searches, dhs, electronics, homeland security, john kelly
Companies: cdt

New Zealand Airports Customs Officials Performing 'Digital Strip Searches' Of Travelers' Electronics

from the putting-the-'awful'-back-in-'lawful' dept

Despite DHS hints that foreign airports were falling down on the "security theater" job, it appears a few customs officials are more than happy to engage in local versions of "extreme vetting." New Zealand customs officials are way ahead of the DHS in this department, having turned airports into rights-free zones where nearly anything can happen... to travelers.

According to an investigative report by New Zealand's 1 news, airport customs officials routinely force up to two travelers each day to give up their electronic devices and passwords for searching. According to the customs agents, the program is designed to look for smugglers by performing a "digital strip search" on the phones and laptops of travelers. This does not require a court order, but the agents do claim to adhere to New Zealand's privacy act.

Yes, somehow the stripping of someone's electronic privacy still "adheres" to the privacy act. One would think "smuggling" would be routine criminal act, not worthy of "digital strip searches." One would also think some sort of reasonable suspicion would be needed to proceed with this, as compared to anti-terrorist activities which usually result in rights-violation blank checks being issued to customs authorities.

The data shows more than 1,300 people have been subjected to these suspicionless "strip searches" since 2015, with less than a third of those being New Zealand citizens. The majority of those searched are foreigners and it appears visitors to the country should somehow expect delays of up to five hours thanks to this supposedly random vetting process.

And there is no option to refuse this additional, highly-invasive search. As Techspot reports, travelers refusing to hand over their electronic devices can be subject to fines of $5,000. That makes it a very expensive trip, especially for foreigners. Extra delays, extra costs, zero privacy -- all in the name of keeping untaxed cigarettes out of NZ or whatever.

Filed Under: electronics, new zealand, privacy, searches, travel

New York Legislators Seeking A 'Right To Repair' Law For Electronic Devices

from the the-end-of-fixed-fixes? dept

Well, this is (potentially) good news. New York is going forward with the first "right to repair" bill in the nation, as pointed out on Twitter by Amanda Levendowski. The bill will allow constituents to bypass manufacturer-authorized dealers/repair centers and use smaller (and cheaper) repair outlets. Or, if neither seems within the price range, they're more than welcome to perform these repairs -- using previously-hidden manufacturer specs and instructions -- themselves.

Perhaps the best thing about the bill (if it passes with as few loopholes as possible) is that it will eliminate the sort of ridiculousness that has been the end result of this tight grip on repair "permission." Like Immigrations and Customs Enforcement (ICE) raiding repair shops for using aftermarket products. Or teens being sued by multi-billion dollar companies for doing the same. Or local governments requiring unrelated licenses to be obtained before a person can start offering repairs.

Here's what's being authorized before the exceptions kick in. (ALL CAPS in the original.)

MANUFACTURERS OF DIGITAL ELECTRONIC PARTS AND MACHINES SOLD OR USED IN THE STATE OF NEW YORK SHALL:

I. MAKE AVAILABLE FOR PURCHASE BY INDEPENDENT REPAIR FACILITIES OR OTHER OWNERS OF PRODUCTS MANUFACTURED BY SUCH MANUFACTURER DIAGNOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR TECHNICAL UPDATES, UPDATES AND CORRECTIONS TO FIRMWARE, AND RELATED DOCUMENTATION, IN THE SAME MANNER SUCH MANUFACTURER MAKES AVAILABLE TO ITS AUTHORIZED REPAIR CHANNEL. EACH MANUFACTURER SHALL PROVIDE ACCESS TO SUCH MANUFACTURER'S DIAGNOSTIC AND REPAIR INFORMATION SYSTEM FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS; AND

II. MAKE AVAILABLE FOR PURCHASE BY THE PRODUCT OWNER, OR THE AUTHORIZED AGENT OF THE OWNER, SUCH SERVICE PARTS, INCLUSIVE OF ANY UPDATES TO THE FIRMWARE OF THE PARTS, FOR PURCHASE UPON FAIR AND REASONABLE TERMS…

EACH MANUFACTURER OF DIGITAL ELECTRONIC PRODUCTS SOLD OR USED IN THE STATE OF NEW YORK SHALL MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE SAME DIAGNOSTIC, REPAIR AND REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH MANUFACTURER MAKES AVAILABLE TO ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED REPAIR CHANNELS. EACH MANUFACTURER SHALL OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.

That's the good part. But there are potential loopholes in the bill already, including a major exception for one of the most tightlipped industries: auto manufacturers.

NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS OR MOTOR VEHICLE DEALERS AS DEFINED IN THIS SECTION.

If any industry needs to be covered under a "right to repair," it's the auto industry, which has continually abused intellectual property laws to keep the general public from diagnosing their own vehicles in order to perform their own repairs.

There's other potential bad news in there as well.

NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE A MANUFACTURER TO DIVULGE A TRADE SECRET.

Yeah. Guess what's going to start being declared "trade secrets?" Probably almost everything the bill orders manufacturers to make available to the public. Even if this bill passes, there's going to be a ton of litigation over what does and does not define a "trade secret." In the meantime, the public will be no better off than they were before the bill's passage.

And there's this exception, which would seem to pick up whatever slack "trade secrets" can't.

NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE MANUFACTURERS OR AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER OR INDEPENDENT REPAIR PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY A MANUFACTURER TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHORIZING AGREEMENT.

"Non-diagnostic" could become the new "diagnostic." And the use of the word "and" seems to make "repair information" off-limits if any agreements are already in place with authorized dealers and repair shops.

There's also a good chance the bill's "fair and reasonable terms" will be construed as permission to price independent repair shops and the general public out of the market. Legislators obviously can't set base prices (or even determine a fair market price -- that information is kept under wraps as well), so the suggestion of a "fair" price is open to advantageous interpretation. There's an attempt to set some limits in the bill's definitions, with the most significant one being "THE ABILITY OF AFTERMARKET TECHNICIANS OR SHOPS TO AFFORD THE INFORMATION," but that, again, is going to generate a lot of friction (possibly of the litigious variety) when manfacturers and the rest of the public repeatedly fail to agree on the definition of "affordable."

Still, it's more than most governments are willing to attempt. Massachusetts passed one in 2013 -- one that targeted auto manufacturers and dealers. It met with the usual resistance from the auto industry (both ends) but gathered 86% of the public's votes, clearly signaling unhappiness with the automakers' closed systems. A federal "right to repair" law has been mooted several times, but has never gained significant traction.

If this bill is going to succeed as a law, legislators need to do some loophole stitching pre-passage, and regulators will need to keep a very close eye on reticent manufacturers after it becomes law.

Filed Under: counterfeits, drm, electronics, new york, right to repair

Taiwan Nannies Rule: Parents Can't Decide How Much Time Their Kids Spend With Electronics

from the mama-government dept

The nanny-state arms race marches on, apparently. Whereas the previous intersection of overbearing government and technology has resulted in politicians attempting to ban the use of headphones while walking across the street, governments introducing all manner of silly policies in the name of "protecting the children", and even municipalities attempting to run psy-ops on citizens to keep them from smoking, Taiwan appears to be taking an even more direct approach with plans to fine the parents of children the government has deemed spend too much time with electronics.

Under rules passed last Friday by Taiwanese politicians, children under the age of two should be completely banned from using electronic devices, Xinhua, China's official news agency reported. Meanwhile under-18s should not be allowed to "constantly use electronic products for a period of time that is not reasonable". It means electronic products are now listed alongside cigarettes and alcohol as potentially dangerous vices.

And you can see their point, assuming you're a crazy person. Because electronics are tools primarily of communication and productivity, even if they're also used for entertainment, and government intrusion on young people's ability to communicate, learn, and be entertained is so far removed from alcohol and tobacco that one wonders how the argument was made with a straight face to begin with. The prospective "too much time" part of this legal equation has yet to be ironed out, but the brainchild for the law is, shall we say, more than slightly aggressive on the topic.

The new regulation is the brainchild of Lu Shiow-yen, a Taiwanese member of parliament who said his intention was to protect young people by stopping them using electronic devices for more than 30 minutes at a time. Parents who break the rules can be hit with fines of up to about £1,000 although it remains unclear how authorities will determine what amount of time is unreasonable.

There's a million reasons why this is stupid, but I'll boil it down to one specific reason: baseball. Baseball is huge in Taiwan. Baseball is enjoyed primarily on television and streaming electronic devices. And baseball, for all its wonderful aspects, takes roughly as much time as it takes for a mountain to form in the Nebraska prairie. Thirty-minute stretches of time as a limit effectively outlaws youngsters watching baseball. Put in that context, and really any other context, these sorts of artificial limitations on the electronics that dominate our lives (in a good way) are ludicrous.

Expect either the backlash here to be huge, or the law to go largely ignored. Either way, this is a political non-starter.

Filed Under: children, devices, electronics, kids, nanny state, parents, screen time, taiwan

DHS Cites 'Credible Threat' As Reason For Forcing Travelers To The US To Hand Over Powered-Up Devices To Airport Security

from the new-searches-and-screenings-because-reasons dept

The Department of Homeland Security still has the power to control the world's airports, or at least those of our Five Eyes' spying allies. New DHS Secretary Jeh Johnson issued the following statement on July 2nd.

DHS continually assesses the global threat environment and reevaluates the measures we take to promote aviation security. As part of this ongoing process, I have directed TSA to implement enhanced security measures in the coming days at certain overseas airports with direct flights to the United States. We will work to ensure these necessary steps pose as few disruptions to travelers as possible. We are sharing recent and relevant information with our foreign allies and are consulting the aviation industry. These communications are an important part of our commitment to providing our security partners with situational awareness about the current environment and protecting the traveling public. Aviation security includes a number of measures, both seen and unseen, informed by an evolving environment. As always, we will continue to adjust security measures to promote aviation security without unnecessary disruptions to the traveling public.

The key part is in the second sentence: "enhanced security measures." The unspecified threat the DHS is reacting to has added a new requirement for passengers taking direct flights to the United States. In short, you'd better make sure all your electronics are charged before you reach the security checkpoint or you quite possibly won't be going anywhere.

Heathrow Airport has told passengers to ensure all electronic devices carried as hand baggage are charged before travel if they are flying to the US.

It posted details of the new rule on its website and Facebook page.

The move follows a request from the US that "certain overseas airports" implement enhanced security measures. The UK government has also revised its rules to state that if a "device doesn't switch on, you won't be allowed to bring it on to the aircraft".

Anyone who has absentmindedly allowed a battery to discharge will still have several options, according to Heathrow officials. They can use airport "charging points" to bring their devices back to life or stash them in stowed luggage. They can also mail the device to themselves if they don't mind being separated for a little extra time. This all sounds very accommodating, but simply having a drained device can place you under suspicion.

Affected passengers have been told they may also have to undergo extra screening measures.

There also seems to be a bit of a disconnect between the DHS and the affected airports as to which devices are subject to the new "charged and operable" standard. The TSA says "some devices, including mobile phones," but fails to be any more specific, exactly the sort of vague, malleable direction the TSA is fond of. Heathrow's list of electronics includes hair dryers, electric shavers, cameras and mp3 players and the wording below the list says nothing more than "make sure your electronic devices are charged before you travel."

This vagueness from everyone involved isn't a good sign. Having to present devices not normally inspected by security personnel and power them up lends itself to "incidental" device searches. The heightened suspicion of devices in general doesn't help. And wherever this "credible threat" the DHS cites in support of this move actually originates, it's apparently hoped that it will route itself through Germany, France or the UK. At this point, no other countries offering direct flights to the US have agreed to the additional security measures.

Filed Under: batteries, devices, dhs, electronics, powered on, terrorism, threats, tsa

FAA Facing More Pressure To Change Its Rules On Electronic Device Usage

from the the-FAA-speaks-'government;'-it'll-understand-being-'legislated dept

Way back in March, the FAA stated that it was taking a "fresh look" at Kindles and tablet computers, possibly moving towards approving these devices for use during takeoff and landing. Nine months later, perhaps feeling the "fresh look" was now a bit past "stale," FCC chief Julius Genachowski politely but pointedly asked the FAA to just get on with it already.

Now, the FAA has been threatened with being cut out of the device rules loop, thanks to Sen. Claire McCaskill, who has warned the FAA to act fast or face being legislated at.

It is my hope that the FAA will work, with the FCC and other federal agencies where appropriate, as expeditiously as possible to implement common sense changes to today's restrictive regulations on in-flight use of PEDs that better reflect new technologies and the changing role these devices play in Americans' daily lives. While the agency can and should use existing authorities to allow for the broader use of PEDs, I am prepared to pursue legislative solutions should progress be made too slowly.

In a blog post for the New York Times, Nick Bilton explores some of the FAA's stalling tactics and dubious claims behind its refusal to allow certain electronic devices to be used during takeoff and landing. Legislative pressure or no, it looks like the FAA isn't going to be moving any faster than is bureaucratically necessary.

In October, after months of pressure from the public and the news media, the F.A.A. finally said it would begin a review of its policies on electronic devices in all phases of flight, including takeoff and landing. But the agency does not have a set time frame for announcing its findings.

An F.A.A. spokeswoman told me last week that the agency was preparing to move to the next phase of its work in this area, and would appoint members to a rule-making committee that will begin meeting in January.

So, it's a start. Nearly a year past the day it promised to "rethink" the personal electronic device issue, the FAA's finally going to begin selecting candidates for its rule-making committee. Presumably, the committee will be finalized at some point within the next six months, at which point the rule-making can actually begin. Judging by the past year's "effort," I would imagine we'll be writing 2014 on our checks before any proposed changes are given a timescale for potential rollout.

In the process of fending off a growing army of irritated fliers, FCC chairmen and legislators, the FAA has conjured up every bit of electro-hysteria in its arsenal to keep fliers sitting upright and at full attention any time the plane goes below the magical 10,000-ft. cutoff.

As Bilton states, arguing with the FAA is like arguing with a stubborn teenager. Despite its inability to provide any evidence to back up its stance on electronic devices, the FAA continues to stick to its increasingly dubious talking points.

A year ago, when I first asked Les Dorr, a spokesman for the F.A.A., why the rule existed, he said the agency was being cautious because there was no proof that device use was completely safe. He also said it was because passengers needed to pay attention during takeoff.

This last statement is odd. I understand that safety instructions are being handed out during the "takeoff experience," but once that's over (or you've seen it more than a couple of times), it would seem passengers should be able to return to whatever they were doing before the hand signals began. Furthermore, no other form of mass transportation demands that its passengers "pay attention" during departure. And, as Bilton points out, people without electronic devices aren't being forced to "pay attention."

When I asked why I can read a printed book but not a digital one, the agency changed its reasoning. I was told by another F.A.A. representative that it was because an iPad or Kindle could put out enough electromagnetic emissions to disrupt the flight.

Which is ridiculous, considering...

Yet a few weeks later, the F.A.A. proudly announced that pilots could now use iPads in the cockpit instead of paper flight manuals.

So, iPads in the cockpit: OK. iPads in the fuselage: Verboten. There's an excuse behind that "reasoning" as well.

The F.A.A. then told me that “two iPads are very different than 200.”

But they're not. EMT Lab's testing manager, Kevin Bothmann, whom Bilton had test a variety of ereaders and tablets for electromagnetic interference, points out that emitted energy doesn't stack.

“Electromagnetic energy doesn’t add up like that. Five Kindles will not put off five times the energy that one Kindle would,” explained Kevin Bothmann, EMT Labs testing manager. “If it added up like that, people wouldn’t be able to go into offices, where there are dozens of computers, without wearing protective gear.”

Bill Ruck, principal engineer at CSI Telecommunications, a firm that does radio communications engineering, added: “Saying that 100 devices is 100 times worse is factually incorrect. Noise from these devices increases less and less as you add more.”

EMT Labs found that a Kindle puts out less than 30 microvolts per meter in use (0.00003 volts), while any airliner that is approved for flight must be able to withstand up to 100 volts per meter. So, the FAA is concerned that a device that puts out emissions at a level that could be generously termed a rounding error will brick the plane during takeoffs and landing.

Then there's the ever-popular "iPad becomes deadly projectile" argument, which finds that airborne rounded corners are more dangerous than hardcover books moving at the same speed. This argument is so weak it's a wonder the sentence didn't collapse on itself the moment it was first uttered.

But the most interesting point of Bilton's piece is the fact that these rules, backed by little more than "because we said so" rationalization, generate the irrational fear that a single person's electronic device could bring the whole plane down. This often results in overreaction.

In September, a passenger was arrested in El Paso after refusing to turn off his cellphone as the plane was landing. In October, a man in Chicago was arrested because he used his iPad during takeoff. In November, half a dozen police cars raced across the tarmac at La Guardia Airport in New York, surrounding a plane as if there were a terrorist on board. They arrested a 30-year-old man who had also refused to turn off his phone while on the runway.

Basing a zero-tolerance policy on irrational fear leads to other problems as well, especially if those involved have "bought in" to the FAA party line.

In 2010, a 68-year-old man punched a teenager because he didn’t turn off his phone. Lt. Kent Lipple of the Boise Police Department in Idaho, who arrested the puncher, said the man “felt he was protecting the entire plane and its occupants.”

These sorts of incidents are bound to become more common the longer the FAA stalls on adjusting its personal electronic device rules. Device usage is growing, and evidence is mounting that the FAA's claims don't hold water. More and more passengers will test the limits of these rules because they find them ridiculous.

Underneath it all, it seems the only thing holding back the FAA's clearance of these devices is its own fear. Since it will never be 100% sure that these devices won't interfere with critical systems, it's going to continue to play it super-safe, since the last thing it wants on its hands is a plane crash occurring shortly after loosening these restrictions. It's the same fear that keeps the TSA from scaling back its efforts. If something bad happens, the rules shouldn't have been changed. If nothing bad happens, it's because the rules are in place. It's fear-based inertia and if any movement occurs, it's usually in the harsher, stricter direction. 

Filed Under: devices, electronics, faa, flight