Is This The Best Homeland Security Can Do In Defending Laptop Searches At The Border?

from the probable-cause-is-so-last-millennium dept

The courts have said that US Customs officials do not need probable cause to search laptops. While some Senators are questioning why Department of Homeland Security is searching laptops without probable cause, the administration is working hard to defend such searches at the border as reasonable. However, they're not making very much sense. The article trots out James Jay Carafano from the Heritage Foundation with a couple of interesting statements. Let's take them in order. First:
"The idea that we would create some kind of sanctuary for criminals and terrorists to carry things across the border to me is absolutely ludicrous."
Well, that's not just an exaggeration, it's wrong. Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border? Of course that's not true. Data flows across borders via the network all the time -- with no customs review whatsoever. No one is walking across the border with a laptop thinking that's the best way to get some data across the border. Then there's this statement:
"It's also unrealistic to require probable cause when you think about the millions of people a day who come in and go out of the country."
Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America." Yet, we don't hear Carafano pushing for a removal of probable cause for searches on the street, do we?

The border searches of laptops issue is a ridiculous one. Yes, it makes sense to search through what physical goods you might be bringing into the country -- because you specifically chose to bring those goods into the country. But the digital things you have stored on your laptop are an overall archive. You didn't choose to bring those specific things across the border -- and it's not like going through a border crossing is the best way to move that content across the border. There's simply no reason for why laptop searches should be allowed without probable cause.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Vincent Clement, Jul 10th, 2008 @ 4:54pm

    The concept of a border is a ridiculous one, especially between Canada and the US.

    I'm not sure how American security is improved by making people who want to shop, eat and watch a show wait 30, 45, 60 or more minutes at the Ambassador Bridge or Windsor Detroit Tunnel?

     

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  2.  
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    JMuniz3, Jul 10th, 2008 @ 5:00pm

    Border Searches

    The idea that information can only be transported in physical form is hysterical. These senators on the hill better start to get on the bandwagon of exactly how data moves across borders everday without interruption or searches. They need to stop fueling their outdated paranoia and actually start learning and thinking about what they are talking about. Narrow, short sighted solutions to any problem are always doomed to failure because they are never thought out. Laptops are not the modern equivalent of microfilm, data-dots, or paper documents. Can they not see that ignorance in this area is exactly why we lose secrets in the first place. Ignorance in this area is why people who were loyal to the U.S. steal and sell secrets. Ignorance in this area is why people who are not loyal to this country can get access to sensitive data. This is just another ploy in a long line of paranoia that action, any action, is being taken to secure our country and its people. This is truly sad.

     

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  3.  
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    rsilva, Jul 10th, 2008 @ 5:40pm

    What's ridiculous....

    ...is the idea that border agents will be powering up laptops and reviewing the contents of files. C'mon folks.... can you really picture an agent powering the system up, waiting for Windows to apply 11 patches and then search for illicit material?

     

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  4.  
    identicon
    Anonymous Coward, Jul 10th, 2008 @ 5:45pm

    wallpaper

    goatse

     

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  5.  
    identicon
    Buzz, Jul 10th, 2008 @ 5:50pm

    WTF?

    HUMAN LIFE is a sanctuary for criminals. The only way to cease all criminal activity is to exterminate society as we know it. We just have to press on doing the best we can without nuking all of the freedoms we enjoy. No system is perfect because humans are inherently imperfect. No amount of technology can compensate for someone's corrupt mind and his/her abuse of power.

     

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  6.  
    identicon
    Russell Cole, Jul 10th, 2008 @ 6:24pm

    Executive Authority that know no bounds

    These people from the Heritage Foundation believe that the power of the executive branch is not just unitary, it is preemptive, even in relation to the Constitution.

     

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  7.  
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    shmengie, Jul 10th, 2008 @ 6:42pm

    on the flipside, here's the heritage foundation making sense:

    http://www.foxnews.com/story/0,2933,376202,00.html

     

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  8.  
    identicon
    Perry, Jul 10th, 2008 @ 6:55pm

    Its the Border

    From 1778 the border has always been treated differently. U.S. Customs Agents have never needed probable cause to search you at the border. This is a Constitutional issue that's been decided in the government's favor for over 200 years. In fact, case law has established that the border can move inland to anywhere in the U.S. as long as you (or the vehicle containing drugs, etc) is kept under constant surveillance. That's how "border" searches are carried out in Kansas or Nebraska.

     

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  9.  
    identicon
    Anonymous Coward, Jul 10th, 2008 @ 6:58pm

    Re: What's ridiculous....

    That's not what they do. If they are really interested, they will remove your harddrive and clone it.

     

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  10.  
    identicon
    Anonymous Coward, Jul 10th, 2008 @ 7:01pm

    Just santize the thing...

    ... then install a truecrypt (http://www.truecrypt.org) hidden volume on a usb key and stick it in your pocket if you really need to carry files with you.

     

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  11.  
    identicon
    Overcast, Jul 10th, 2008 @ 7:34pm

    The courts have said that US Customs officials do not need probable cause to search laptops.

    Just because they lie about it, doesn't mean it's so. That's illegal, plain and simple.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


    What part of *shall not be violated* do they not understand?

     

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  12.  
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    Mr. Kev, Jul 10th, 2008 @ 9:25pm

    Duh, to stop the sneakernet from pirating all those fine canadian films and showing them to us americans. sheesh. duh. get a clue.

     

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  13.  
    identicon
    Anonymous Coward, Jul 10th, 2008 @ 9:25pm

    Re: Executive Authority that know no bounds

    These people from the Heritage Foundation believe that the power of the executive branch is not just unitary, it is preemptive, even in relation to the Constitution.
    Only when the executive is a conservative Republican.

     

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  14.  
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    ToySouljah, Jul 11th, 2008 @ 2:05am

    Wait for it, wait for it...

    "Yet, we don't hear Carafano pushing for a removal of probable cause for searches on the street, do we?"

    at the rate we are giving up our liberties we will have check points just to leave our subdivisions soon.

    "May I see your papers?"

    "I'm just going to the store to get some stuff."

    "Stuff huh? Please step out of your vehicle sir."

    "I didn't do anything."

    "Then you have nothing to worry about now do you?"

    At that point you better hope no one using your vehicle has accidentally left anything in there. If so....see you at Gitmo :)

     

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  15.  
    identicon
    James Carafano, Jul 11th, 2008 @ 2:55am

    Give Me a Break

    Thanks for being concerned about an important issue, but lets take the discussion to a serious level. Your first comment:

    #1 Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border?

    Of course I don't, but the truth is some malicious actors do tranport information in that manner and searches are one way to find them. Arguing any law enforcement measure is not a "silver bullet" is not a very good complaint because no "law enforcement" measure is a "silver bullet." Following your line of argument there would be no law enforcement.

    #2 Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America."

    Of course, I don't because the law clearly states that the 4th amendment operates differently at the border. Your expectations of privacy, the courts have ruled again and again are lower at the border....and that courts have ruled that way for a reason...because it is impractical to use the same standard for people walking down the street.

     

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  16.  
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    John, Jul 11th, 2008 @ 5:56am

    Moronic idiots

    Our government is ruled by moronic idiots with Emperor Bush leading in that category.

    If I wanted to smuggle information across the boarder I can think of MANY, MANY, MANY ways. Here's a few off the top of my head:

    1) Move information to a SD card and put it in your pocket

    2) Burn information to a mini-CD and but it in your pocket

    3) Put information onto a Sony datastick and put in your PSP

    4) Put it in a microSD card and put the microSD card inside your wristwatch, sew it in your shirt, etc.

    And that's just off the top of my head.

    Geez... who do they REALLY think they're going to search? Terrorists? Mobsters? Drug dealers? Pedophiles?

    Most of them are going to be more intelligent and more tech savy than any senator and a headless chicken is more intelligent than Fuehrer Bush. They'll simply encrypt their data, move it to something that can't be traced, etc.

     

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  17.  
    identicon
    hegemon13, Jul 11th, 2008 @ 6:29am

    Re: Re: Executive Authority that know no bounds

    What a joke! Did you not read that Obama voted FOR FISA? Believe me, there are plenty of power-hungry, constitution-destroying jackasses throughout the whole spectrum of politics. This whole "blame the other color" attitude is, in large part, why our nation is in so much trouble.

     

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  18.  
    identicon
    BTR1701, Jul 11th, 2008 @ 6:47am

    Re: Its the Border

    > This is a Constitutional issue that's been
    > decided in the government's favor for over
    > 200 years.

    Yes, despite the fact that the Constitution itself makes no mention of a "border exception" to the 4th Amendment. It states that people shall be free of search and seizure unsupported by warrant issued upon probable cause. Period. It doesn't say "except at the border".

    The government basically ignored the Constitution and did what it wanted to do and the Court rubber-stamped it.

    The fact that it was decided 200 years ago is irrelevant. A bad decision is a bad decision, no matter how old it is.

    > case law has established that the border can
    > move inland to anywhere in the U.S. as long as
    > you are kept under constant surveillance

    That's a perfect example of how ludicrous the whole "border exception" has become. The Courts have basically just thrown out the Constitution altogether and are writing their own laws at this point. What's next? No warrants necessary for police searches anywhere in the USA so long as the government can demonstrate that you've ever had any kind of nexus to a foriegn country? Ever made an international call? Your home is now on the "border" and can be searched? Ever connected to a web site hosted in a foreign country from your home computer? Same deal.

    It's a brave new world, folks, and we're all in for a treat.

     

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  19.  
    identicon
    BTR1701, Jul 11th, 2008 @ 7:02am

    Re: Give Me a Break

    > the law clearly states that the 4th amendment
    > operates differently at the border.

    Why? Seriously. Why should me expectation of privacy be lower at the border than anywhere else? Other than it's just inconvenient for the government, I mean.

    > Your expectations of privacy, the courts have
    > ruled again and again are lower at the border

    Again, why? And more to the point, why does a court get to set the paramaters of my expectations. If they're mine, shouldn't it be *me* who defines where and when I expect privacy?

    > because it is impractical to use the same standard
    > (at the border) for people walking down the street.

    Why? As a federal agent myself, I can attest that it's no small hurdle to meet the probable cause burdens of the warrant requirement for "people walking down the street", and having worked at the border with Customs on occasion, I've observed that it's often *easier* to meet that burder because at the border people are forced to interact with the police in a way they aren't anywhere else. Their actions, admissions and body language (all elements of probable cause) are on full display in a way they aren't to cops and agents everywhere else.

    I'd argue that the warrant requirement is actually *more* practical at the border than in other situations.

    One of the other posters in this thread mentioned the court decision that extends the border anywhere in the USA if the person is under surveillance. There's no rational way that could be consistent with the text of the 4th Amendment, which states that people shall be free of search and seizure unsupported by warrant issued upon probable cause. Period. It doesn't say "except at the border". And it certainly doesn't say extend that to the entire country, so long as the police start watching you at the border.

    I said it above and it bears repeating: The Courts have basically just thrown out the Constitution altogether in this area and are writing their own laws at this point. What's next? No warrants necessary for police searches anywhere in the USA so long as the government can demonstrate that you've ever had any kind of nexus to a foriegn country? Ever made an international call? Your home is now on the "border" and can be searched at will. Ever connected to a web site hosted in a foreign country from your home computer? Same deal.

    You may dismiss that as silly and paranoid but being in federal law enforcement myself I've seen people seriously propose such things. It's actually somewhat frightening. And if the cops themselves are starting to worry, shouldn't you be?

     

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  20.  
    identicon
    Overcast, Jul 11th, 2008 @ 7:47am

    > the law clearly states that the 4th amendment
    > operates differently at the border.


    Yeah - perhaps - but this law, again, makes no question of how this is to be applied. Any law to the contrary is simply illegal - regardless of what various Government thugs say.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Again - it doesn't say anything about it being different at the border. It CLEARLY states this right "shall not be violated" - period. Regardless of what other bullshit the courts and congress want the sheep in this country to believe. That's clear and concise. I don't believe where it takes place matters - I think it means ANY US LAW ENFORCEMENT OFFICIAL that's doing his job this applies to.

    Don't believe the lies you hear in the media and from the politicians of today - it's illegal, end of story - it's in direct violation of the 4th amendment.

    The US constitution applies to all US Citizens when they are in contact with law enforcement based in the US.

    It's not silly or paranoid - those who say it is, are just sugar coating the shit they try to feed us anymore to make yourself feel better when you know well they are violating our rights.

    I like how some of you people believe that this law and that law - or this constitutional right and another aren't applicable because of 'certain' conditions.

    What part of 'shall not be violated' don't some people get? Isn't that clear enough?

     

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  21.  
    icon
    Mike (profile), Jul 11th, 2008 @ 11:09am

    Re: Give Me a Break

    James, thanks for stopping by and responding, but I'm afraid I still have issues with what you're saying.

    #1 Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border?

    Of course I don't, but the truth is some malicious actors do tranport information in that manner and searches are one way to find them.


    Yes, and the truth is that some malicious actors do walk down the streets every day, and random searches are one way to find them. But we don't do that because that's a violation of our basic rights.

    Arguing any law enforcement measure is not a "silver bullet" is not a very good complaint because no "law enforcement" measure is a "silver bullet." Following your line of argument there would be no law enforcement.

    No, not at all. Law enforcement still exists, but it follows the same basic rules of engagement that protects our civil liberties: i.e., probable cause is needed to search.

    The reason for border searches is to make sure whatever the person has on them doesn't make it into the country. Border searches of laptops don't do that.

    #2 Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America."

    Of course, I don't because the law clearly states that the 4th amendment operates differently at the border. Your expectations of privacy, the courts have ruled again and again are lower at the border....and that courts have ruled that way for a reason...because it is impractical to use the same standard for people walking down the street.


    James, you've twisted this all up in your mind. First you claim that it's not reasonable to require probable cause -- and when I point out why it *is* reasonable, you change your argument, and say that "well, the law says things are different." Notice that you have not explained your original statement: "It's also unrealistic to require probable cause when you think about the millions of people a day who come in and go out of the country."

    Why is it "unrealistic" at the border but "realistic" elsewhere? "The law says so" doesn't make any statement on the "realistic" or "unrealistic" requirement.

     

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  22.  
    identicon
    Anonymous Coward, Jul 11th, 2008 @ 11:56am

    Re: Re: Re: Executive Authority that know no bounds

    Did you not read that Obama voted FOR FISA?
    What has that got to do with the Heritage Foundation?

     

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  23.  
    identicon
    John, Jul 11th, 2008 @ 4:24pm

    Poster #3

    To poster #3 who laughs about how border guards don't have the ability to sit and go through all your Windows files.

    Here's a probable solution: they simply take the laptop for later searching.

    Border officer: Sir, we don't the time to go through all of your files here. We'll have to take your laptop from you. We'll return it in 6 to 8 weeks.

    Man: But I need that for work.

    Officer: Sir, are you arguing with me?
    (Looks at a sheet of paper.)
    And I see your name, "Ted Kennedy" is on our "watch list". Please step aside.

    Man: But I need need to make a connecting flight to get home.

    Officer: I said step aside. You won't be making that connecting flight today.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Jul 12th, 2008 @ 7:23pm

    take a desktop

    just take a desktop and let them figure it out!

     

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  25.  
    identicon
    another mike, Jul 14th, 2008 @ 1:24pm

    i'd rickroll them

    I still like the idea of having the computer play a very loud Monty Python medley or a Rickroll when they log in to my laptop.

    He's pining for the fjords/
    Never gonna give you up/
    Spam Spam Spam Spam/
    Never gonna let you down/
    I'm a lumberjack and I'm OK/
    Never gonna run around and desert you/
    I fart in your general direction/

     

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  26.  
    identicon
    Anonymous Coward, Jul 15th, 2008 @ 8:25am

    I know it's easier to give in...

    but we need to stand our ground! Don't give in to the searches refuse to give up your passwords, you have every right to. They are counting on our laziness and the fact that we find it easier to give in to take away our civil rights! We as Americans have become complacent. This country was founded by men who were unwilling to give up their basic rights and freedoms to a tyrannical government. We need to regain that spirit and realize that we should not be afraid of our government, it is our government that should be afraid of us.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    francisco, Apr 7th, 2009 @ 6:28am

    dumb actiion

    HEEELLLLOO!!!!!
    there is a thing called internet if anyone wants to bring information to the U.S. can send it that way instead.

    may be you should seize the internet too!!!

    that will work

    :D

     

    reply to this | link to this | view in thread ]


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