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.


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  1.  
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    Jim Harper (profile), Sep 9th, 2010 @ 8:07am

    4th Amendment Law Gone Bad

    You've captured what the cases hold: that people don't have Fourth Amendment rights at the border. They've gotten here despite the plain language of the Fourth Amendment which bars unreasonable searches without exception or reservation.

    What courts have done in case over case is slip from finding border searches reasonable --- they often are --- to finding that all border searches are reasonable, to finding that the prohibition on unreasonable searches does not apply at the border. It's a nice illustration of how doctrine misleads courts and lawyers, eroding our rights over time.

    I hope it works, but I'm not a big fan of using First Amendment arguments to prop up the Fourth. We must wave the words of the Fourth Amendment in front of courts until they apply it again.

    The government should be able to search for contraband, dutiable items, and crime evidence that it has reasonable belief it will find. But asserting the power to search and copy data held by any U.S. traveler returning to the country is unreasonable.

     

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    interval (profile), Sep 9th, 2010 @ 8:21am

    Re: 4th Amendment Law Gone Bad

    "U.S. traveler returning to the country is unreasonable."

    I completely and utterly agree. As Mike wrote, any kind of "illegal data" (whatever that might be) can be transferred effortlessly across any border via the internet, making this particular search completely meaningless and a complete waste of time. As if going through the border didn't already cost people hours of time.

     

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    GeneralEmergency (profile), Sep 9th, 2010 @ 8:23am

    Ummm...

    Since when are our border facilities NOT on US soil?

     

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    Svante Jorgensen (profile), Sep 9th, 2010 @ 8:34am

    Not so fast...

    @ Mike
    Just because you can pretty much transfer any data over borders via the internet, that doesn't mean that the US gov don't try to find things there that it don't like (With things like Echelon and so on). I don't buy that argument alone, evil data in the right place can be extremely destructive. Just because the gov is extremely crude and clueless in its attempts, it doesn't automatically mean that they should stop.

    Also, the argument that people just put all their stuff in their Laptop, and not select things don't make that much sense to me either, you could make the same argument for many womens purses. That doesn't mean that they are exempted for search.

    On the whole I'm against Laptop searches at borders, I just don't see how your arguments are defensible.

     

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    ofb2632 (profile), Sep 9th, 2010 @ 8:39am

    Jurisdiction

    If we are not in the country, how can the us government search us? They have jurisdiction in our country, not out of it!! So, either we ARE under US jurisdiction and they can search us, or we are not under US jurisdiction and they cannot search us. Saying that, since they search us, we should have certain protections afforded us by the US constitution.

     

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    average_joe (profile), Sep 9th, 2010 @ 8:40am

    Re: Ummm...

    Yeah, I think Mike's got that part wrong.

    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.

    I read a few cases about the border search exception in my Fourth Amendment class, but I don't remember the "you're not yet in the country" argument ever being made.

    As I recall, the court simply balanced the traveler's privacy interest with the government's interest in conducting the search. At the border, the government's interest wins out.

     

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  7.  
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    Ben, Sep 9th, 2010 @ 8:43am

    Steganography, Encryption, Obfuscation.

    All of the above, save on microSD and keep in a hollow coin in your pocket.

     

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    avg_citizen, Sep 9th, 2010 @ 8:47am

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

    They need to argue that if you not in the Country yet for the 4th amendment to apply. Then how do they have the right to conduct any search if you are not yet in the Country. What Country are you in when they search you? It would have to be the US or else they would not have the authority to do so.

     

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  9.  
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    Anonymous Coward, Sep 9th, 2010 @ 8:47am

    Re: Ummm...

    didn't you know border patrol may stop and detain you within 100 miles of the actual line in the sand?

    our constitution and rights do not even apply within the country.

     

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    Dark Helmet (profile), Sep 9th, 2010 @ 8:56am

    Re: Re: Ummm...

    Actually, I haven't heard a whole lot of the "not yet in the country" argument either. What I HAVE heard has been a loosening of 4th amendment protections at specific points (border crossings, airports, seaports, etc.). It's important to note that no court has tossed out the entire 4th amendment, saying it does not apply at the border.

    Only the need for a warrant is dismissed....

     

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    Anonymous Coward, Sep 9th, 2010 @ 8:56am

    Re: Not so fast...

    they are defensible because.. wait for it

    what can [evil] data physically, even possibly do?

    this is the gubbermint taking control of everyday, law-abiding citizens and will not impact the real criminals in any way shape or form because they will simply (a) not bring data on electronic devices and (b) if they need evil data, they will transfer it securely across the net.

     

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    darryl, Sep 9th, 2010 @ 9:02am

    Not knowing what is on your laptop ? really, that is a worry.

    It is a poor argument to say that stuff on your laptop "just sort of gets there" without you knowing about it.
    That may be the case for you, but most people are very aware of what is on their laptops, especially if there is something that should not be there.

    But that is to say that I do no necessarily agree with border laptop searches, but if that is what they want, and if I want to travel, that is what I will put up with.

    I cannot imagine what software or data that would need to be smuggled into the US that would greatly effect HLS.

    But I guess, they want to cover all bases, and if you are silly enough to have material on your computer that would be considered illegal, to try to enter the US, then I must say you deserve to be in jail !

    I am interested to know what type of software or data that you would want to bring across the border, that you now feed that you cannot carry on your laptop, knowing that you may well be searched at the border ?

     

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    average_joe (profile), Sep 9th, 2010 @ 9:09am

    Re: Re: Re: Ummm...

    Exactly. Border searches are done while you are in this country, and the Fourth Amendment still applies. It's just that the balancing of interests results in a different set of rules at the border.

     

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    out_of_the_blue, Sep 9th, 2010 @ 9:10am

    This is not "law", it's tyranny.

    The executive branch probably doesn't actually care how the court rules; they'll just invoke "national security" and continue to do arbitrary searches and seizures. The purpose is not "security" but to accustom you to arbitrary rules. If you object, the epsilon minuses will be happy to acquaint you with what courts call "actuality".

     

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    average_joe (profile), Sep 9th, 2010 @ 9:12am

    Re: Not knowing what is on your laptop ? really, that is a worry.

    Good point, darryl. I had to read this sentence twice 'cause I didn't really understand Mike's point, nor could I believe he was making it:

    Things on your laptop, however, are there because they're just there on your laptop.

    Um, the things on my laptop that would potentially be of interest to the border patrol are the things that I put there. Duh.

    Not the best legal analysis by Mike, but that's nothing new...

     

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  16.  
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    Dark Helmet (profile), Sep 9th, 2010 @ 9:14am

    Re: Re: Re: Re: Ummm...

    It seems to me that your best bet to discontinue border searches of electronic equipment would be to get them qualified as either unreasonable or unroutine, as those requirements of the 4th Amendment still apply.

    Unfortunately, the 4th and 9th Circuit courts have led the charge in classifying that anything that does not involve a direct search of your person qualifies as both reasonable and routine. That's the problematic part of all this....

     

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    Anon, Sep 9th, 2010 @ 9:15am

    Heh

    I think i'd like to remove my HDD from my laptop and mail it to my end destination, just to let them search my laptop at the border and show them how retarded the line of thought here is.

     

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  18.  
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    Dark Helmet (profile), Sep 9th, 2010 @ 9:22am

    Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    "Um, the things on my laptop that would potentially be of interest to the border patrol are the things that I put there. Duh."

    No, not duh. There's a couple of problems with this:

    1. The CBP has offered no outline or statute governing their search process upon execution. In other words, they are bound by no firm guidelines with regard to search criteria or oversight. So you are in no position to determine what would be of interest to them, nor is anyone else.

    2. How can the government out of one side of their mouth hype up a digital war, with all the spying, subterfuge, and trickery that would entail, and then out of the other side suggest that individuals should have firm knowledge of what's on their machines? That's the whole idea behind most malware today: to exist and propogate w/o the knowledge of the victim. Extrapolating from that, it isn't at all unreasonable to suspect that there are things, often nefarious, on people's equipment of which they are unaware.

    3. The DHS has shown themselves in recent days to have acted outside of their mandate. They have absolutely no business, as outlined by their own charter, to have anything to do with issues of copyright infringement. The CBP is under the DHS. What have they done to earn the citizen's trust in this regard?

     

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  19.  
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    Dark Helmet (profile), Sep 9th, 2010 @ 9:23am

    Re: Heh

    Too bad that CBP also can open and search incoming international mail....

     

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  20.  
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    Greg Ryman, Sep 9th, 2010 @ 9:29am

    Another reason to run Linux with whole disk encryption. Good luck having them try and get into my laptop.

     

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  21.  
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    average_joe (profile), Sep 9th, 2010 @ 9:33am

    Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    It's not hard to imagine what things they are interesting in. I'm going to guess that it's the criminal things. Again, I'm gonna have to say, "Duh."

     

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    Berenerd (profile), Sep 9th, 2010 @ 9:35am

    Re: Ummm...

    my last job working for a large computer company had me working on DHS and DOJ computers/servers/Printers and so on. Many of the border spots, both on the northern and southern as well as sea ports are "international" soil. They are not US soil but governed by. You will find this in most countries I believe. Even though i was not crossing a border I still had to be searched as if I was.
    This doesn't necessarily mean I agree with it, just stating from my experience. I do infact think its wrong though I have not seen it happen. most places I have been have simply powered on my laptops to make sure they boot up and then turn them off. not like they randomly image my drives and send me on my way.

     

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    ComputerAddict (profile), Sep 9th, 2010 @ 9:37am

    All we need now is one of those brilliant HR people to take everyone's unencrypted personal data home on their laptop, (which happens more than it should, like HP, Pfizer, FEMA, City of Madison Wisconsin, Administaff, Twin Cities Blood Bank, I could go on forever, but my lunch break is over) bring it across the border, have all that data searched by border protection and have everyone's S.S. Number posted online from some freedom of information act request.

     

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  24.  
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    IronM@sk, Sep 9th, 2010 @ 9:41am

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

    They also have the authority to not let you in the country at all ;)

     

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    VoicesInMyHead (profile), Sep 9th, 2010 @ 9:42am

    Re: Not knowing what is on your laptop ? really, that is a worry.

    "Things on your laptop, however, are there because they're just there on your laptop."
    "It is a poor argument to say that stuff on your laptop "just sort of gets there" without you knowing about it."

    Where in his statement does it mention "not knowing about it"? Granted poor choice of words, but if you read Mike's line in context:

    It's more the fact that luggage items are a select choice from total items you live with in your house you choose to take vs. the items you leave at home. Your laptop (in general) encompasses your total collection of digital information, and leaving some of it behind is not a choice many have. Just because you only need a business presentation, you're not likely to move all other data to an external drive, or server just to travel.

     

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  26.  
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    Berenerd (profile), Sep 9th, 2010 @ 9:42am

    Re:

    Also a good way for them to hold it indefinitely if you don't log in for them past the encryption.

     

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    The Infamous Joe (profile), Sep 9th, 2010 @ 9:55am

    Re: Re: Re: Re: Re: Ummm...

     

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    average_joe (profile), Sep 9th, 2010 @ 10:00am

    Re: This is not "law", it's tyranny.

    I don't think so. If the Supreme Court declared it unconstitutional, then they wouldn't be able to do it. The purpose is security, and rightfully so. It's not to "accustom you to arbitrary rules." Are you by chance wearing a tinfoil hat? Wow.

     

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  29.  
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    average_joe (profile), Sep 9th, 2010 @ 10:01am

    Re: Re: Re: Re: Re: Re: Ummm...

    Keanu Reeves is "the one." That much is clear. ;)

     

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  30.  
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    Henry Troup (profile), Sep 9th, 2010 @ 10:05am

    Re: Ummm...

    A fair number are in Canada. Many Canadian airports have US pre-clearance, so you can deal with DHS rules in Toronto or Ottawa.

     

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    The Infamous Joe (profile), Sep 9th, 2010 @ 10:07am

    Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    You're missing the point, champ. If you don't want the border guards to see your anal beads, you decide *not* pack your anal beads. Therefore, if they search your shit (punsRfun) and find anal beads, it's because you positively decided to *bring* them.

    If you don't want the border to see your bank records; pictures of your lover, Antonio; or all your 34GB of Furries porn, you have to actively *remove* them from your laptop. Hence, you have to make a positive decision to *remove* them.

    The bottom line, since you missed it, is that people often carry their entire lives around on their mobile computing devices, but they only carry a few essentials in their luggage when they travel.

     

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  32.  
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    The Infamous Joe (profile), Sep 9th, 2010 @ 10:09am

    Re: Re:

     

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    average_joe (profile), Sep 9th, 2010 @ 10:20am

    Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    If you have such legal things on your laptop, then you are choosing to let them examine those things. You choose to put that stuff on your laptop and to bring that laptop across the border. The positive decision was to put that stuff on your computer in the first place, and then to carry that computer across the border. You've got fair warning that your computer can be searched, so it's not like it's a surprise.

    I'm not really seeing the point of this line of debate, to be honest.

     

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  34.  
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    Anonymous Coward, Sep 9th, 2010 @ 10:20am

    human rights do not disappear or reappear when you cross an imaginary line. rights cannot be granted, given, or taken away.

     

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    IshmaelDS (profile), Sep 9th, 2010 @ 11:00am

    Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    nice dodge on the malware issue. So what's your answer to that? I have seen malware actively downloading things that would be considered illegal. (I'm a PC tech)

     

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    Jay (profile), Sep 9th, 2010 @ 11:00am

    Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    First, no, you're not letting them examine them. The 4th Amendment actually doesn't allow this explicitly. Regardless the Patriot Act and the misinformation that this security is okay means you have the inconvenience of "allowing" the government to see inside your personal life.

    They happen to be on the laptop. Unless you're looking to reformat your entire hard drive OR fly out with a different laptop, it's pointless. Don't even try to suggest that people just buy laptops at will. Also, people tend to put a lot of irrelevant things or personal items on their laptops which the DHS doesn't need at all to know about. And what happens when it's returned 11 days later with their malware on it? Quite frankly, 11 days is too long for them to be working on it. If they can't return it to you within a few hours, then they've overstepped their boundaries.

    Just a few things they could look into that's not their business:

    Your contacts - Find out if you're a good citizen or not, also see if someone in your link of friends may be a terrorist

    Phone numbers - Why should they know this?

    Projects - Maybe you're working on a secret project, that they can expose and find a link to terrorism.

    These are just a few things that should raise concerns.

     

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  37.  
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    btrussell (profile), Sep 9th, 2010 @ 12:07pm

    Re: Not knowing what is on your laptop ? really, that is a worry.

    "It is a poor argument to say that stuff on your laptop "just sort of gets there" without you knowing about it.
    That may be the case for you, but most people are very aware of what is on their laptops, especially if there is something that should not be there."

    I take it laptops are immune to virus, malware etc...

    Or do people knowingly install them?

     

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    Pangolin (profile), Sep 9th, 2010 @ 12:22pm

    What's happened so far as a result of these searches?

    1 - has any laptop ever been searched?

    2 - what was the negative consequence to the holder of the laptop? What's been done as a result of these searches?

     

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  39.  
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    Mike Masnick (profile), Sep 9th, 2010 @ 12:23pm

    Re: Not knowing what is on your laptop ? really, that is a worry.

    It is a poor argument to say that stuff on your laptop "just sort of gets there" without you knowing about it.
    That may be the case for you, but most people are very aware of what is on their laptops, especially if there is something that should not be there


    I never said that.

    Darryl, if you are going to criticize me, how about focusing on what I said, not something you made up?

     

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    average_joe (profile), Sep 9th, 2010 @ 12:53pm

    Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    I never said that.

    Darryl, if you are going to criticize me, how about focusing on what I said, not something you made up?


    I know how that feels. ;)

    Ahem.

     

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    The Infamous Joe (profile), Sep 9th, 2010 @ 1:10pm

    Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    Are you really that dense? I know the bar for court clerk is already low, but c'mon, really?

    When I buy and use a laptop, I don't think "I should be careful what I put on here, I might have it searched by the government one day." Do you? Be honest. Please note: I'm not talking about putting illegal things on it, just personal things.

    So, I have had my laptop for several years and have no desire or expectation to bring it out of the country. I *can* however, be asked by my employer to travel to other countries. I would want to bring my laptop with me in that event. Would you say it is a *positive* decision on my part to place those personal, sensitive files on my computer before hypothetically traveling? (Hint: It isn't.)

    Please keep in mind that I find no fault in obtaining a warrant to search a laptop because that would require probable cause; In this case, the only "probable" cause is that I am crossing an imaginary line, and no warrant is required. I understand that you hope to abuse the IP system one day, but surely you care about your own personal privacy, right?

     

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    average_joe (profile), Sep 9th, 2010 @ 1:22pm

    Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    Are you really that dense? I know the bar for court clerk is already low, but c'mon, really?

    Sigh. Always with the personal insults around here.

    So your interpretation is necessarily the correct one, and anyone who disagrees with you is dense and wrong. Um, hint, the world doesn't work that way.

    Sigh.

     

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  43.  
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    Jay (profile), Sep 9th, 2010 @ 1:30pm

    Re: Re: This is not "law", it's tyranny.

    "The purpose is security, and rightfully so."


    "Those who would sacrifice freedom for security deserve neither."

    Ben Franklin

     

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    The Infamous Joe (profile), Sep 9th, 2010 @ 1:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    Sorry, you're right.

    Now, back to the point, above?

     

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    Dark Helmet (profile), Sep 9th, 2010 @ 1:55pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    ...I thought he was banned?

     

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    average_joe (profile), Sep 9th, 2010 @ 2:01pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    Thanks for the apology. And for the record, I don't know what kind of law I'm going to practice, and if it ends up being IP, that doesn't mean I'm going to abuse the system.

    My response above was to Mike's comment: "Things on your laptop, however, are there because they're just there on your laptop." I didn't really understand his point. If you are crossing the border and they search your laptop and find your stash of kiddie porn, then you're busted. You can't tell the judge, "But, Your Honor, that's just the stuff on my laptop." You affirmatively put the stuff there, and you chose to cross the border where they are allowed to search your computer for such things.

    To answer your question, well, yes, I am conscious of the fact that when I go through security the contents of my computer might be searched. I'm not too worried about it because I don't have anything illegal on my computer, and as far as I know, they aren't collecting people's personal information or using it for any nefarious purpose.

    The legality of these types of searches isn't perfectly clear in that the Supreme Court hasn't weighed in on them, at least not that I know of. I have read the big cases where the legality of border searches in general were contested, and the balancing test used by the Court was reasonable. I may not agree with their decision, but that doesn't mean the argument for it can't be made. Like most things in law, there are good arguments on both sides.

     

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    average_joe (profile), Sep 9th, 2010 @ 2:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    "The report of my death is an exaggeration."

    ;)

     

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    average_joe (profile), Sep 9th, 2010 @ 2:09pm

    Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    I don't really understand the malware argument. I can't imagine they are searching people's computers for malware. They presumably are looking for criminal things, i.e., things that the computer owner put there on purpose.

    Are the border searchers now offering anti-virus scans? That's awful nice of them. :)

     

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    average_joe (profile), Sep 9th, 2010 @ 2:14pm

    Re: Re: Re: This is not "law", it's tyranny.

    "Those who would sacrifice freedom for security deserve neither."

    Great quote, but freedom is balanced against security all the time.

     

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  50.  
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    Dark Helmet (profile), Sep 9th, 2010 @ 2:33pm

    Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    "I don't really understand the malware argument. I can't imagine they are searching people's computers for malware. They presumably are looking for criminal things, i.e., things that the computer owner put there on purpose."

    Sigh, you're right, you don't understand it. I'll try to be more clear.

    Some malware downloads illegal things onto your computer. Malware by definition is illegal (I think). There is some really nasty stuff out there. It can be a botnet used for spam purposes. It can try to download porn onto your computer or cause porn popups. Some of these are for child porn. Some are more nefarious in that they don't make it obvious what they're putting on your machine.

    The point is, for the *ahem* average Joe out there, they probably are consciously aware of maybe half the things that are on their computer. Because things can be routinely saved in cache and/or temp folders/histories, I can see victims of malware getting "caught" at the border with all manner of illegal things on their computer.

    Shall we toss those folks in jail?

     

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  51.  
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    Matt P (profile), Sep 9th, 2010 @ 2:44pm

    So the Bill of Rights is important enough to uphold within our borders, just not important enough to extend - even to US citizens - outside them, even if "outside" is a technicality. Apparently your rights as a citizen stop at the border, huh?

    Wow. This is the kind of thing I point to when people ask me why I moved out of the US and why I won't be coming back. Land of the Free my ass.

    This policy is noxious for the sake of being noxious. If I want to get "contraband information" past the border, all I'm going to do is put it on Dropbox or something similar (plenty of options here) and then access it once my clean laptop gets past your idiot guards.

    Or just delete GRUB from the MBR and boot into a dummy Windows install that can't recognize the hidden ext4 partition.

    Another pointless and hypocritical policy brought to you by our government of Freedom and Change.

     

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  52.  
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    average_joe (profile), Sep 9th, 2010 @ 2:52pm

    Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    I would say that if a person was found to have child pornography on their computer at a border crossing, then yes, they would be arrested. If it ended up that the pornography was there by way of some unknown malware, then that would be a great defense--but the defense comes later.

    How are the border agents supposed to know which people intentionally have child pornography on their computers and which people are the victims of unknown malware?

     

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  53.  
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    Montezuma (profile), Sep 9th, 2010 @ 4:11pm

    Want to piss of the U.S. Government? Just transfer your data(updated, if it changes) and wipe your laptop when you are getting ready to travel internationally. When they ask you see your laptop, just smile, and tell them to go wild. It is at this point that I tell them that I have sent the updated Ghost file to my home, over the internet, and that all they are going to see is a completely wiped laptop. If you have a lot of data(which most of us do), you can also just mail your hard drive between where you will be staying and your home. I usually make a backup, in case the hard drive is lost or the data become corrupt.

    I also use software they writes over the entire hard drive multiple times, similar to what they use in sensitive areas of commercial and government sectors. Most of the time, the border agent will sigh and give me my laptop(s) back. There have been a few times that a border agent has tried to tell me that what I have done is a crime, but I just warn them that I know better(ex-law enforcement here) and they can drop the act. I had one agent demand to know where the information was being stored, but I laughed and told him no.

    Yeah, it can be a pain, but it is better than having some idiot border agent looking through your personal, private data. It is not their right, and I refuse to bend to their stupid demands. It is also fun to humiliate the agent.

     

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  54.  
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    Dark Helmet (profile), Sep 9th, 2010 @ 4:41pm

    Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    They're not supposed to know. They can't know. This one issue is an example of why they shouldn't be checking laptop data...

    Thank you for making my point....

     

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  55.  
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    Jay (profile), Sep 9th, 2010 @ 8:14pm

    Re: Re: Re: Re: This is not "law", it's tyranny.

    Please read that again. You seem to be misunderstanding what the intention is. You basically are stating that security is great and you would lose your personal freedoms for this false sense of security.

    The two are not conclusive. The freedom to have my laptop and personal belongings are not measured by how "safe" I feel at the airport.

     

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  56.  
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    Anonymous Coward, Sep 9th, 2010 @ 10:43pm

    Re: Jurisdiction

    The US Constitution is the source of the government powers not our rights. We have rights, the government has our permission to exist, and the Constitution just enumerates our rights.

     

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    mattarse (profile), Sep 10th, 2010 @ 12:10am

    Re: Not knowing what is on your laptop ? really, that is a worry.

    "It is a poor argument to say that stuff on your laptop "just sort of gets there" without you knowing about it."

    Not necessarily - I'm sure many laptops are corporate issued and if your company is like mine they automaitcally install software, forms, even screensavers every time I log into the network. It's not unreasonable to assume that I don't closely monitor what they are putting on. Plus if they are searching for say child porn - are you responsible for it if a spammer sends you something and you sync before going to the airport but don't read and delete?

    As to what I don't want some random border gaurd to look at - anything with my bank account numbers, emails from my family etc. There are lots of legal data that I don't want others to see.

     

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  58.  
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    Anonymous Coward, Sep 10th, 2010 @ 2:33am

    Re: Re: Re: Re: Re: Re: Re: Ummm...

    He's referencing the wetware data implants used by Johnny, who is a data smuggler in the movie.

     

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  59.  
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    RT Cunningham (profile), Sep 10th, 2010 @ 3:20am

    Re:

    It's not why I moved out of the US, but it's the reason I won't move back.

     

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  60.  
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    average_joe (profile), Sep 10th, 2010 @ 6:16am

    Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    I don't really think it's a "false sense of security." I believe border checkpoints offer real security.

     

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  61.  
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    average_joe (profile), Sep 10th, 2010 @ 6:30am

    Re: Re: Re: Re: Re: Re: Re: Re: Ummm...

    I remember the movie, unfortunately. :)

     

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  62.  
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    average_joe (profile), Sep 10th, 2010 @ 6:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    I made your point? I'm not sure I get your point. If I do get it, I don't think I agree.

    Are you saying that they shouldn't search a computer for child porn because they won't be able to distinguish on the spot whether the person has the porn on purpose or not? I don't think that's a very strong argument.

    Using that logic, they shouldn't search your bags for drugs because maybe you're a drug smuggler or maybe somebody put the drugs in your bag when you weren't looking.

    Heck, why even search your bags for guns and bombs? Maybe someone slipped those in there when you had your back turned. Just bring those on in!

     

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  63.  
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    The Infamous Joe (profile), Sep 10th, 2010 @ 7:09am

    Re: Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    So, you honestly believe that evil-doers are transferring data via laptops being walked into the country instead of, I dunno, the internet?

    It's a false sense of security because it gives the appearance of security without actually making anything more secure.

    For instance: The FAA does not allow gel shoe inserts on planes, but allows laptop batteries and hammers. I can do *way* more damage with a li-ion battery or a hammer than I can with a Dr. Scholls gel insert. (Therefore, so could a hypothetical terrorist)

    Someone has already quoted the Ben Franklin quote about security and freedom in this thread. Read it 100 times, please.

     

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  64.  
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    average_joe (profile), Sep 10th, 2010 @ 7:17am

    Re: Re: Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    I honestly don't know what types of evildoers they're catching while searching laptops at the border. The only case I've read about involved child porn, so I know it's worked at least once. I haven't really researched the issue though.

     

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  65.  
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    The Infamous Joe (profile), Sep 10th, 2010 @ 7:23am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    sigh

    I'm not too worried about it because I don't have anything illegal on my computer, and as far as I know, they aren't collecting people's personal information or using it for any nefarious purpose.

    You are assuming the only data someone wants to keep private is illegal data. Since they can't very well poke around in every laptop right away, they make images of the drives to look at later, and as far as *I* know, they're using my personal data for a nefarious purpose based solely on the fact that I don't know what controls they have in place for my personal data after they force me to hand it over without probable cause or a warrant.

    You're one of those "If you've got nothing to hide" people, aren't you?

     

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  66.  
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    The Infamous Joe (profile), Sep 10th, 2010 @ 7:33am

    Re: Re: Re: Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    So, a potential violation of thousands of Americans' right to privacy to catch one pedophile that was so stupid that he didn't even think to double encrypt his kiddie porn.

    Way to go, America.

     

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  67.  
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    average_joe (profile), Sep 10th, 2010 @ 7:47am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    Why do you think they're using your innocent data for a nefarious purpose? I've seen no evidence of that whatsoever. It's not like they could keep that secret if they were doing it. Word would get out.

     

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  68.  
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    average_joe (profile), Sep 10th, 2010 @ 7:48am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    Who said anyone's rights were violated? You don't have the right to refuse the border search as far as I know.

     

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  69.  
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    The Infamous Joe (profile), Sep 10th, 2010 @ 8:04am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    1. I said potentially.
    2. Their right against unreasonable search and seizure.

     

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  70.  
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    The Infamous Joe (profile), Sep 10th, 2010 @ 8:09am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    The simple fact that to re-enter my country I have to allow some random government worker to view my private files without suspicion or court warrant is nefarious! This is made even worse by the fact that such a search does not actually make anyone in the country safer!

    I would rather hold on to my privacy and run the risk that some terrorist is sneaking in evil plans on a laptop instead of the (literally) thousands of faster, more secure, more convenient, cheaper and more effective ways to do so.

     

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  71.  
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    average_joe (profile), Sep 10th, 2010 @ 8:17am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is not "law", it's tyranny.

    Border searches in general aren't unreasonable, according to the Supreme Court. I don't think there's any "potentially" about it. No ones rights are being violated.

     

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  72.  
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    average_joe (profile), Sep 10th, 2010 @ 8:26am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    According to the Supreme Court, border searches aren't unreasonable. They don't need to have probable cause, reasonable suspicion, or specific and articulable facts. In the balancing test used by the Court, the government's need to search you beats out your expectation of privacy. Keep in mind that the Constitution only says that if they want to have a search warrant, then they have to have probable cause. It doesn't say that probable cause is needed to search without a warrant. Most people don't realize that.

    I'm not convinced that it doesn't make us any safer. Just because some people get away with doing evil doesn't mean it's not worth it to catch the ones that get caught. Every bad guy that gets caught is a victory for our safety, IMO. I think every little bit helps.

     

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  73.  
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    The Infamous Joe (profile), Sep 10th, 2010 @ 9:08am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    According to the Supreme Court, border searches aren't unreasonable.

    Yet, the very topic of this post is that some citizens of this country disagree. I am one of them. Too many of my fellow Americans would gladly trade their freedoms for perceived safety without a thought to the consequences of said actions.

    Every bad guy that gets caught is a victory for our safety, IMO. I think every little bit helps.

    So, perhaps we should allow the government to search our homes without probable cause or a warrant? Surely that would catch quite a few criminals, right? Every little bit helps, after all!

    I want you to know that I say the following, not to insult or bait you, but simply because it is my honest opinion:

    People like you are 100% what is wrong with this country. Not only because of your views on this subject, but also all the other views you have expressed here on techdirt. I don't think you're a bad person, you're just a horrible American. You blindly accept the rules because they are the rules. You would rather be coddled like a child with no privacy from the government to be "safe". You, when presented with a system that harms just as many innocent as it does guilty, and think to yourself, "Maybe I should get in on that" instead of "I should try to fix this clearly broken system."

    I am calling this thread dead (It is nearly unreadable in threaded view!) but something tells me we'll have another chance to discuss similar topics soon.

     

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  74.  
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    average_joe (profile), Sep 10th, 2010 @ 9:26am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Not knowing what is on your laptop ? really, that is a worry.

    Try not reading it in threaded view.

    Yet, the very topic of this post is that some citizens of this country disagree. I am one of them. Too many of my fellow Americans would gladly trade their freedoms for perceived safety without a thought to the consequences of said actions.

    I certainly understand it if people disagree with the Court's balancing of security and privacy at the border. I'm not sure I agree with the Court myself. I think their analysis is reasonable, but I don't necessarily agree with the reasoning.

    So, perhaps we should allow the government to search our homes without probable cause or a warrant? Surely that would catch quite a few criminals, right? Every little bit helps, after all!

    Our homes are one of the places that receive the highest level of privacy, and rightfully so. In order for the government to search our homes, there must be probable cause or exigent circumstances. That's how it should be. The reasoning that lowers the reasonableness bar at the border doesn't apply to our homes, nor should it.

    I want you to know that I say the following, not to insult or bait you, but simply because it is my honest opinion:

    People like you are 100% what is wrong with this country. Not only because of your views on this subject, but also all the other views you have expressed here on techdirt. I don't think you're a bad person, you're just a horrible American. You blindly accept the rules because they are the rules. You would rather be coddled like a child with no privacy from the government to be "safe". You, when presented with a system that harms just as many innocent as it does guilty, and think to yourself, "Maybe I should get in on that" instead of "I should try to fix this clearly broken system."

    I am calling this thread dead (It is nearly unreadable in threaded view!) but something tells me we'll have another chance to discuss similar topics soon.


    Shucks. I thought we were having a good talk, and now you're playing the "people like you are 100% what is wrong with this country" card.

    Sorry you think I'm a terrible American. I live my life as best I can.

     

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  75.  
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    David Muir (profile), Sep 10th, 2010 @ 12:54pm

    Re: Ummm...

    Actually in large international airports (Toronto's Pearson, to name one) U.S. border facilities are NOT on U.S. soil. Regardless, you'd think there would be some thought to protecting citizen rights ESPECIALLY when they're not on U.S. soil.

     

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  76.  
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    average_joe (profile), Sep 10th, 2010 @ 1:02pm

    Re: Re: Ummm...

    Right, but at those airport checkpoints you are in U.S. jurisdiction subject to U.S. laws.

     

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  77.  
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    David Muir (profile), Sep 10th, 2010 @ 1:11pm

    Re: Re: Re: Ummm...

    Just not trifling ones like the U.S. Constitution.

    (I think someone said about that the Constitution is intended to protect citizen rights. I am not a U.S. Citizen so I am not talking about me... but I would think that the rights of citizens SHOULD be of highest priority. You mentioned the "reasonableness" was the litmus test in the courts. Unreasonable could be defined as "utterly useless and without any hope of actually stopping data flowing across the borders". I see the reasonableness of finding out: is this laptop really a bomb? I do not see the reasonableness of capturing a hard drive's contents and picking through it at the government's leisure to find ANYTHING and EVERYTHING you have ever stored electronically (even a bunch of stuff you deleted)... especially when that same data has probably crossed the border hundreds of times via the Interpipes.)

     

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  78.  
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    David Muir (profile), Sep 10th, 2010 @ 1:12pm

    Re: Re: Re: Re: Ummm...

    ...someone said *above* (not about)...

     

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


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