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Privacy

by Tim Cushing


Filed Under:
1st circuit, 4th amendment, border searches, cbp, dhs, ice, warrants

Companies:
aclu, eff



Judge Allows Fourth Amendment Challenge Of Warrantless Device Searches At The Border To Continue

from the uphill-battling dept

A federal judge has allowed the ACLU, EFF, and the several plaintiffs they represent to continue their Fourth Amendment lawsuit against DHS, ICE, and CBP. The plaintiffs are challenging the Constitutionality of border device searches -- something that has skyrocketed in recent years. As it stands now, these agencies believe nothing stronger than reasonable suspicion is needed to perform highly-intrusive searches. In many cases, not even suspicion is needed, thanks to the "border search" exception to the Fourth Amendment courts have carved out for the government.

Policies for agencies performing border device searches are pretty much identical. All allow searches and seizures of devices without individualized suspicion. This warrantless, suspicionless search may also result in the device being confiscated for weeks or months while a forensic search is undertaken -- again, supposedly without violating travelers' rights. CBP's policy was altered this year, requiring forensic searches and the mirroring of devices to at least reach the level of reasonable suspicion. Better than ICE's policy, but still nothing approaching a warrant.

The government sought to have the lawsuit dismissed, claiming the plaintiffs had no standing to assert violations, much less seek injunctive relief on the theory they would likely be subjected to intrusive device searches the next time they traveled.

The court disagrees with all the government's arguments. The government claimed the number of device searches -- although steadily increasing -- is still a small percentage of the overall whole. The court points out it doesn't really matter what the percentage is. It's whether or not CBP and ICE perform these searches routinely. From the decision [PDF]:

Defendants contend that Plaintiffs have also failed to satisfy the “substantial risk” inquiry. Plaintiffs allege that CBP data demonstrates that it is on track to conduct approximately 30,000 searches this fiscal year. Defendants point out, however, that those searches only amounted to 0.008% of the approximately 189.6 million travelers who arrived at U.S. borders during this period. Defendants argue that this future search probability—which they characterize as a “slight chance” of search—is not sufficient to establish standing here.

There is no numerical threshold, however, at which likelihood of harm becomes a “substantial risk” of harm. See Kerin v. Titeflex Corp., 770 F.3d 978, 983 (1st Cir. 2014) (noting that “a small probability of a great harm may be sufficient”). Although 0.008% may be a small percentage of total travelers, the searches still occur at an average of approximately 2500 searches per month. In SBA List, the Supreme Court supported its conclusion that there was a substantial likelihood of future harm with the explanation that proceedings enforcing the statute in question were “not a rare occurrence,” with twenty to eighty such cases occurring per year. Against this backdrop, 30,000 searches per year is not a “rare occurrence,” even if it makes up a small percentage of total travelers.

The government also argued allegations of future harm were too vague to support a lawsuit. The court finds this argument unbelievable, given the history of the plaintiffs' interactions with border agents and the agencies' border search practices.

Defendants also argue that Plaintiffs’ allegations of future harm are impermissibly “vague” and speculative. They point to Reddy for the proposition that in the First Circuit, “‘[s]peculation’ that a government actor ‘might in the future take some other and additional action detrimental to’ Plaintiffs, is ‘not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.’” In Reddy, however, the First Circuit held that the plaintiffs’ assertions of standing were speculative as to a New Hampshire buffer zone statute, emphasizing that the statute had not yet been enforced. Here, by contrast, Plaintiffs challenge policies that are in place and are being actively enforced.

[...]

Plaintiffs’ alleged future injury does not depend upon defendants’ future illegal conduct untethered to a pattern of past practice, cf. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (concluding that plaintiff subject to illegal arrest procedure made no showing that he was likely to be arrested and subjected to illegal procedure again), but rather upon recurring conduct authorized by official policies. That is, Plaintiffs’ subjection to prior searches further bolsters their allegations of likely future searches.

The heart of the matter is the border search exception. It's what allows CBP and ICE to bypass the Supreme Court's Riley decision and its institution of a warrant requirement for device searches. The government seizes a single phrase from the Supreme Court ruling: "search incident to arrest." Its argument attempts to divorce border device searches from the Supreme Court's finding that searching cellphones was more analogous to searching houses than searching pants pockets or suitcases. The court doesn't agree with the government's distinction.

As an initial matter, the Court is not persuaded that Riley’s reasoning is irrelevant here simply because Riley’s holding was limited to the search incident to arrest exception, see Riley, 134 S. Ct. at 2495. Judicially recognized exceptions to the warrant requirement do not exist in isolation; rather, they are all part of Fourth Amendment jurisprudence, justified because, ordinarily, the circumstances surrounding the search and the nature of the search have been deemed “reasonable.”

[...]

Here, the First Circuit has not yet spoken on what level of suspicion is required to justify a cell phone or other electronic device search at the border. The First Circuit has, however, acknowledged the significant privacy interests implicated in a cell phone search, explaining that the information on these devices is “the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.”

The court then goes on to say that merely raising the standard for invasive device searches to "reasonable suspicion" may not be enough.

[T]he Supreme Court rejected the reasonable suspicion standard when it came to cell phones because it “would prove no practical limit at all when it comes to cell phone searches.” Digital device searches at the border, perhaps even when supported by reasonable suspicion, raise the same concerns.

This is encouraging, even if all that's happened at this point is the case surviving the government's motion to dismiss. It provides plenty of insight into the court's thinking, and shows how much of it is at odds with the government's assertions. This has the potential to restore some Fourth Amendment protections at our nation's borders for the first time in years.


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  • icon
    Anonymous Anonymous Coward (profile), 17 May 2018 @ 1:42pm

    Exceptions and harm

    Beyond the (in my perspective) unconstitutional border zone exceptions (I don't mind them searching bags or containers or given the right circumstances people, but cell phones, tablets, computers?), I still have difficulty with the idea that a cell phone might cause someone harm. It might contain information that the owner of that phone might be planning some harm to someone at some point in the future, but the phone itself causing harm? If there is likelihood that the phones owner has some criminal intent, then the authorities should have some inkling due to past behavior or associations that would lead them to such a position. That comes from doing investigative work (something that appears to be anathema to law enforcement these days). Then they would have probable cause and be eligible for a warrant. Which I will admit takes some, though not much, effort.

    The better reasoning is that they are on a fishing expedition with no clue as to what they are actually looking for. Oh, and when they find 'something' the twisting and turning to make that 'something' into something nefarious is often comedic in nature.

    It seems to me that there are reasons beyond the simpering excuses proffered by the government in the above case, that they don't, and likely won't mention. Those reasons might actually get them in trouble. Also, they are not in the peoples interest. The governments interest yes, our interest no.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 2:49pm

      Re: Exceptions and harm

      How many searches target security researchers, journalists and human rights activists?

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 3:12pm

      Re: Exceptions and harm

      Phones are extremely dangerous. Just look at all the times people were shot for brandishing a cell phone that officers later claimed was a gun.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 4:28pm

        Re: Re: Exceptions and harm

        The dangerous object in your example is the officer and loose interpretation of their allowed actions.

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

      • icon
        Bergman (profile), 19 May 2018 @ 3:11pm

        Re: Re: Exceptions and harm

        By that standard, muggers are not dangerous and the true danger to citizens is the possession of wallets. So wallets should be banned.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 3:58pm

      Re: Exceptions and harm

      I still have difficulty with the idea that a cell phone might cause someone harm.

      Batteries can combust or explode. It's okay if they want to search the physical phone enough to know it's not going to start a fire on a plane. They can do that while it's locked. Similarly, it's fine to look through someone's papers for knives, forbidden fruit, etc. They should not be allowed to inspect or gather data.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 4:06pm

        Re: Re: Exceptions and harm

        Similarly, it's fine to look through someone's papers for knives, forbidden fruit, etc.

        Give 'em an inch and they take a mile.

        They can look through your private papers for pictures of knives, and hand-drawn illustrations of forbidden apples.

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

    • identicon
      Anonymous Coward, 18 May 2018 @ 5:28am

      Re: Exceptions and harm

      That comes from doing investigative work

      Work? Some warrants? You're always making things difficult. Don't know how, I want it now!

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

    • icon
      Bergman (profile), 19 May 2018 @ 3:10pm

      Re: Exceptions and harm

      Something I don't get about border exceptions -- ALL federal law derives its authority from the Constitution, and a federal statute cannot override the Constitution without a constitutional amendment.

      So if the highest federal law does not apply at the border, how can ANY federal law apply there?

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

      • identicon
        Anonymous Coward, 19 May 2018 @ 9:09pm

        Re: Re: Exceptions and harm

        Something I don't get about border exceptions…

        From the instant decision, p.38

        The border search exception is widely considered as old as the United States itself. See Ramsey. “The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789 . . . . grant[ing] customs officials ‘full power and authority’ to enter and search ‘any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed.’”

        (Citations simplified; hyperlinks added.)

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

        • icon
          Bergman (profile), 20 May 2018 @ 4:11pm

          Re: Re: Re: Exceptions and harm

          The problem I have isn't the physical search at the border, it's the ever-expanding scope of those searches. Within 100 miles of the border contains ~90% of the population of the United States. Which effectively abolishes the Constitution for those people.

          If the border exception pre-dates the Constitution and does not violate the Constitution, that 100 mile court ruling means the Constitution has been repealed -- something the court that issued the ruling lacks the authority to do.

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

  • identicon
    Jordan, 17 May 2018 @ 2:35pm

    Conflicts between Fed and State

    In many states, Cannabis or Medical Marijuana are now legal, but the genius feds do not agree. If one has photos showing one engaging in legal state activities, one has a motivation not to show it to a border guard.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 5:51pm

      Re: Conflicts between Fed and State

      Conflicts between the Federal and state governments were forcibly settled in 1865 with total supremacy established by the central government. All state governments were effectively relegated to being administrative sub-units of the Federal central government, with the loss of their original "united states" sovereignty. The original Constitution and Bill of Rights became merely customary guidelines rather than fundamental law.
      The 4th Amendment means whatever the Federal government says it means on any given day. But the overwhelming long term trend of U.S. courts is to to interpret Federal government authorities very broadly while interpreting citizen rights very narrowly.

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

      • identicon
        Anonymous Coward, 18 May 2018 @ 9:34am

        Re: Re: Conflicts between Fed and State

        There are some narrow exceptions to it however. States cannot be compelled to enforce federal law but they also cannot override federal domains.

        For instance states cannot make their own immigration laws that is federal jurisdiction. However they have zero obligation to assist in the enforcement of federal law. This is what allows for legalization of marijuana at a state level or sanctuary cities. They decide enforcement is not worth it or wrong and are barred from doing so.

        The federal government can step in at any time in theory but in practice they lack the resources and forcing the issue has other negative effects so they don't unless it is very important.

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

      • icon
        Bergman (profile), 20 May 2018 @ 4:24pm

        Re: Re: Conflicts between Fed and State

        The Supremacy of federal statutes over state statutes does not allow the federal government to violate the federal Constitution.

        The US Constitution only mentions prohibition of intoxicants in two places -- the 18th amendment and the 21st amendment. The 21st wholly repealed the 18th. The feds COULD NOT nationally prohibit alcohol consumption without amending the Constitution, and the only changes regarding such things to the Constitution in the past 100 years have been those two amendments.

        So if the feds had to amend the Constitution to get the authority to ban alcohol, and they have the same authority today that they did before they ratified that amendment, how then can they ban a natural substance if they couldn't ban a manufactured, artificial one?

        The Controlled Substances Act relies upon the fact that at the time it was enacted, all the states prohibited the drugs the Act prohibited. The 21st amendment allows for the feds to prevent cross-border smuggling, and that seems to be the basis for the Controlled Substances Act.

        The feds worked extremely hard to get all the states to enact their own prohibition of cannabis, cocaine, etc -- they KNEW they were on shaky constitutional grounds if even one state didn't enact prohibition.

        And now, with states legalizing cannabis, the Controlled Substances Act is in real trouble -- the constitutional gray area it has always existed in no longer exists. The 21st amendment allows the feds to criminalize transporting illegal drugs into states that prohibit them, but the amendment grants no authority to interfere with state legalization, which is reserved to the states by the Tenth Amendment to the US Constitution.

        The feds do indeed have statutory supremacy over state statutes. But the US Constitution has supremacy over federal statutes, and the US Constitution is not compatible with the Controlled Substances Act as it is now being interpreted.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 7:35pm

      Re: Conflicts between Fed and State

      Like I said, people have been burned for what they did not know about, which is why you want to wipe and reinstall, before crossing into the USA, so that it will not be found.

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

  • identicon
    Anonymous Coward, 17 May 2018 @ 6:50pm

    However, before you go anywheres NEAR the border, you to wipe all your devices with anti-forensic software, so that NOTHING can be recovered.

    When I go to San Diego, to Sea World, the only option for eating breakfast in the morning is the Coco's which is very close to the Mexican border, and sometimes people zig when they should zag.

    I make sure I am well prepared in case I cross the border when I do not intend to. I carry Mexican insurnace for my car, for all the days I plan to be in San Diego, and I use anti-forensic tools on my laptops and cell phones, just in case I do unintentionally cross the border, so that CBP will never be able to recover anything from my phones.

    People have been burned for what they did not know was there. Wiping my phones and re-installing everything guarantees that anything I do not know about cannot come back to haunt me.

    Coco's is close enough to the border, where you could drive into Mexico, without intending to, which is why I wipe all my devices before going to Coco's for breakfast in the morning.

    I just start the software running at night before I go to bed, and the wiping is done the next morning. All I have to do then is use a recovery disk I made to restore Windows and all my programs, it takes about 30 minutes. I do that while I shower, shave, and get dressed, and the reinstall of Windows, and all my programs is done when I am through,getting ready for the day.

    One the wipe is done on my phone, I just factory reset it, and there will no POSSIBLE way that CBP could EVER know that I wiped my phone and reinstalled all my apps.

    Google now has a feature which can reinstall your apps after you factory reset, so when I factory reset at night before I go to bed, all my apps are reinstalled on the phone after the reset is done.

    This way, if I do cross the border without intending to, any device search by CBP, when crossing back in the USA, will not get them any useful information, and they will never know my devices were ever wiped.

    There really is no coffee shop in Downtown San Diego for breakfast, so driving about 25 miles to Coco's the only option for breakfast in the morning. Coco's is about 25 miles from downtown, and the border is about 26 miles from downtown.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 7:04pm

      Re:

      … no POSSIBLE way that CBP could EVER know…

      Besides your blabbermouth confession, that is.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 7:18pm

        Re: Re:

        Their examination of my devices would not show anything. And I am not breaking any laws by wiping and reinstalling every night, when I go to San Diego, before I drive to Coco's restaurant for breakfast, just in case I do unintentionally cross the border.

        Like I said, the Downtown area has no places for breakfast, and Coco's is the only place to go for breakfast.

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

        • identicon
          Anonymous Coward, 17 May 2018 @ 7:40pm

          Re: Re: Re:

          I am not breaking any laws by wiping

          Sarbanes-Oxley.

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

          • icon
            Anonymous Anonymous Coward (profile), 17 May 2018 @ 7:50pm

            Re: Re: Re: Re:

            Wouldn't this presume that there was something either illegal or incriminating to begin with? Just keeping your private information private shouldn't actually be illegal.

            Oh, I understand that the government would totally interpret this in their favor, whether reasonable or not, so letting them know how you prepared for your trip would not be wise.

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

            • identicon
              Anonymous Coward, 17 May 2018 @ 8:12pm

              Re: Re: Re: Re: Re:

              Wouldn't this presume that there was something either illegal or incriminating to begin with?

              141 Cong. Rec. S 7418-21 (July 26, 2002) — “Legislative History of Title VIII of HR 2673: The Sarbanes-Oxley Act of 2002”

              MR LEAHY: Mr. President, yesterday during my floor remarks on the final passage of H.R. 2673, the Sarbanes-Oxley Act, I requested unanimous consent that a section by section analysis and discussion of Title VIII, the Corporate and Criminal Fraud Accountability Act, which I authored, be included in the Congressional Record as part of the official legislative history of those provisions of H.R. 2673. . . .

                   This statute is specifically meant not to include any technical requirement, which some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter by intent or otherwise. It is also sufficient that the act is done “in contemplation” of or in relation to a matter or investigation.

              (Emphasis added.)


              Note, incidentally, that while this GPO source for the Congressional Record has “HR 2673” written, a relevant record for the 107th Congress's bill HR 3763 has—

              Procedurally-related: Text from S.2673 was inserted into H.R.3763

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

            • identicon
              Anonymous Coward, 17 May 2018 @ 9:02pm

              Re: Re: Re: Re: Re:

              Like I said, if they come to your house to arrest you for that, just post bail then not show up in court. Just flee the country and that will be the end of it.

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

            • identicon
              Anonymous Coward, 17 May 2018 @ 9:29pm

              Re: Re: Re: Re: Re:

              Like I said, I come through my MetroPCS phone, and I pay the bill each month with cash at a MetroPCS store. With no credit or debit card trail, I cannot be identified.

              It only costs $3 extra to pay at the local MetroPCS store. $3 is a small price to pay for privacy. No money trail = UNTRACEABLE.

              This is why, for example, states that want laws that require phones in their states to be filtered for porn will not work. Someone could go over the state line, buy a phone with cash, and pay the bill with the cash any Metro store, and their identity will never be known.

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

            • identicon
              AncientOne, 18 May 2018 @ 7:55am

              Re: Re: Re: Re: Re:

              The old "nothing to hide" bs-----

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

          • identicon
            Anonymous Coward, 17 May 2018 @ 8:26pm

            Re: Re: Re: Re:

            If they come to my house to arrest me, I would just post bail, then not show up in court, and just head for the border, and and get out of the, and that would be the end of it.

            If they were to put one of these GPS ankle bracelets on me, I could buy a jammer, and and jam the device, then they would lose all contact with the device, allowing me to cut it off, and then put in my microwave oven, and destroy it, then they would lose all tracking on me, then I all I have to do is get on I-5 and head for the border, then that would be the end of it.

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

          • identicon
            Anonymous Coward, 17 May 2018 @ 8:49pm

            Re: Re: Re: Re:

            There is no way to know, from examining the device, that is was wiped, if you use the right tools.

            With laws Sarbanes Oxley in the USA, and "Perverting The Course Of Justice" in Britain, the makers are wiping programs making their use harder to detect.

            And the makers of anti-forensics are not breaking any laws in either Britain or the USA, by making usage of their tools harder to detect.

            You just need to use the right tools, so your wiping of your device will not be detected.

            And since these tools are not made in the United States, they are not subject to Sarbanes Oxley, or any other US law, nor are they subject to British laws, if they are not in Britain.

            When Evidence Eliminator was made, they were subject to British laws, but not American ones. Sabanes Oxley never applied to Robin Hood Software, because they were a British company, so they could never be prosecuted in the USA for selling Evidence Eliminator.

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

          • icon
            Roger Strong (profile), 18 May 2018 @ 8:42am

            Re: Re: Re: Re:

            Sarbanes-Oxley applies if you know you're under investigation. Until someone tells you that your phone has been selected for an intrusive device search - random or otherwise - I don't see that Sarbanes-Oxley should stop you from wiping it.

            And of course it wouldn't apply to a non-American wiping their phone before entering the country.

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

            • identicon
              Anonymous Coward, 18 May 2018 @ 9:47am

              Re: Re: Re: Re: Re:

              Sarbanes-Oxley applies if …

              148 Cong. Rec. S S7419 (July 26, 2002)

                                DISCUSSION

              … a new general anti shredding provision, 18 U.S.C. Sec. 1519…

              … Section 1519 is meant to apply broadly…

              … the intent required is the intent to obstruct, not some level of knowledge about the agency processes…

              … specifically meant not to include any technical requirement, which some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter by intent or otherwise.

              … extends to acts done in contemplation of such federal matters, so that the timing of the act in relation to the beginning of the matter or investigation is also not a bar to prosecution. The intent of the provision is simple; people should not be destroying, altering, or falsifying documents to obstruct any government function.

              (Emphasis added. Heading capitalized in accord with pdf.)


               

              • Does not “include any technical requirement to tie the obstructive conduct to a pending or imminent proceeding or matter.”

              • “The timing of the act in relation to the beginning of the matter or investigation is also not a bar to prosecution.”

               

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

              • identicon
                Anonymous Coward, 18 May 2018 @ 11:04am

                Re: Re: Re: Re: Re: Re:

                There is no way they could know your phone was wiped and re installed

                Modern wiping tools, the way they work, make it impossible to detect because the make whatever media is being wiped as blank as when it was manufactured. One all your apps are reinstalled, there would be no way for anyone to detect it0

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

                • identicon
                  Anonymous Coward, 18 May 2018 @ 11:30am

                  Re: Re: Re: Re: Re: Re: Re:

                  There is no way they could know…

                  First Re: in this thread — “Besides your blabbermouth confession, that is.”

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

                  • identicon
                    Anonymous Coward, 18 May 2018 @ 12:16pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    True, but my point is they would not know from examining the device itself that anything was ever wiped. Modern wiping tools are that good.

                    With laws like Sarbanes-Oxley in the USA or perverting the course of justice in Australia and the UK, the makers of these tools have been improving them to where their cannot be detected by examining the device.

                    Possessing these tools does not break us, UK, or Australian law, so they cannot arrest you for merely possessing them

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

              • icon
                Roger Strong (profile), 18 May 2018 @ 2:50pm

                Re: Re: Re: Re: Re: Re:

                Clearing one's browser cache is a basic privacy protection. I have my browsers set to clear the cache, passwords etc. automatically when I exit.

                Likewise crooks snooping on public hotel Wi-Fi is a legitimate concern. Having a laptop stolen while travelling is a legitimate concern. Smart phones are targeted too. And so occasionally wiping non-essential information is again a basic protection.

                Even minimizing your contact list protects your contacts against malware - or email services and social media networks - that like to vacuum them up.

                You're not destroying data to obstruct any government function, as Sarbanes-Oxley requires. You're doing it as routine common-sense computer security.

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

                • identicon
                  Anonymous Coward, 18 May 2018 @ 3:28pm

                  Re: Re: Re: Re: Re: Re: Re:

                  You're not destroying data to obstruct any government function, as Sarbanes-Oxley requires. You're doing it as routine common-sense…

                  148 Cong. Rec. S 7419 (July 26, 2002)

                  Questions of criminal intent are, as in all cases, appropriately decided by a jury on a case-by-cases basis.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 9:22pm

        Re: Re:

        Actually, they would never know who it is. When I pay my bill each month, I go down the MetroPCS store and pay with cash, no checks or credit cards, so there is no credit card trail to trace down who I am.

        Any prepaid phone account will work in this manner. Just go down and pay your bill every month with cash. That is the ultimate anonymous Internet there is. As long as you pay, at the store, with cash, there is no money trail to trace back to you.

        Of course, Metro will charge you a little more for that priveledge. It $3, in addition to whatever your monthly charge is.

        Other prepaid providers will vary. With Verizon, you just go down to the local convenience store, and by a card with a number on it, than you dial 611, and punch in that number on the card, when prompted and your bill is paid.

        As long as you pay with cash, no checks or credit cards, your will be totally anonymous.

        That is what would have made the Commercial Felony Streaming Act unenforceable, if it has been passed. Someone could buy a prepaid phone, and then pay the bill each month with cash, and the Feds would never be able to trace that person's identity, as long as they did not use any cards to pay the bill.

        All they will be able to find out is that someone was paying every month with cash.

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

        • identicon
          Anonymous Coward, 18 May 2018 @ 6:59am

          Re: Re: Re:

          As long as you pay with cash, no checks or credit cards, your will be totally anonymous.

          No, not totally. The payment data can identify the store and time; then video recordings from that area can be obtained. People have been tracked down this way.

          To be totally anonymous that way, you'd need to be buying a zero-knowledge token that can't be traced back to any particular purchase*. The math is well understood, but I know of no one other than Zero Knowledge Systems that ever did it.

          (* They could still pull records of all such tokens purchased around activation time, so don't activate right away.)

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

          • identicon
            Anonymous Coward, 18 May 2018 @ 10:57am

            Re: Re: Re: Re:

            One solution would be get a jammer that jam frequencies that security cameras use. Nearly all cameras are wireless now, so having a jammer that temporarily puts that camera out of commission while you make your payment would make you untraceable

            Nobody reviewing the footage would have any idea of what happened, as it would appear to be a malfunction and nobody would ever figure out the camera was being jammed

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

            • identicon
              Anonymous Coward, 18 May 2018 @ 11:14am

              Re: Re: Re: Re: Re:

              And then they have someone watch the camera live, and someone watching who is walking in, and probable cause to arrest you.

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

              • identicon
                Anonymous Coward, 18 May 2018 @ 11:47am

                Re: Re: Re: Re: Re: Re:

                I might open my own phone store someday, and if I do, there will be no cameras in my store, so that people who want to pay without being identified can do so

                I will have ZERO cameras in my store to protect the privacy of those who want to be anonymous. And if the Fed's do not like that, they can KISS my ASS

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

                • identicon
                  Anonymous Coward, 18 May 2018 @ 2:17pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Well, also make sure you locate your store in a remote enough location that your customers won't be recorded on other cameras—but not so remote as to compromise your anonymity-set.

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

                  • identicon
                    Anonymous Coward, 18 May 2018 @ 3:53pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    ALL my customers will have to do is have anti camera license plate covers, so other cameras cannot get that if license plate numbers.

                    And I will also stock them in my store, sold as a privacy tool.

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

              • identicon
                Anonymous Coward, 18 May 2018 @ 12:04pm

                Re: Re: Re: Re: Re: Re:

                Not if it is done from a distance. There are jammer that one could keep in their car with enough power to jam from quite a ways away.

                Just have one of these anti camera license plate covers so that security footage that sees your car before you turn on the jammer will get your number

                From an angle, your license number would be invisible.

                I use those when I go to Arizona so that speed cameras on I 10 cannot get my license number

                There is one onion farm that trucks onions in southern California and in Arizona where smell of the onions in their trucks are so pungent that if don't go blowing by it at 90+ miles an hour, I will start to cry. The odor is that pungent.

                So having one of these covers that prevent the camera from getting my plate number keeps me out of jail, as any speed 85 or over in Arizona is criminal offense.

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

            • identicon
              Anonymous Coward, 18 May 2018 @ 2:14pm

              Re: Re: Re: Re: Re:

              Nearly all cameras are wireless now, so having a jammer that temporarily puts that camera out of commission while you make your payment would make you untraceable

              They're both wireless, and devoid of local storage? That's kind of surprising, though consistent with the lack of failure-planning that's common these days (eg. "just-in-time logistics").

              Do be aware it's not just the instore cameras that are a problem. The external camera recordings of other stores could be obtained. Or the police could get records of lost camera connections—the store camera lost signal, and 30 seconds earlier this other camera had lost it, and they could trace you all the way back to your house or wherever you turned the jammer on. (Better hope no location-tracked citizens had a dashcam or were taking photos in the area!)

              Then there are the police department cameras in some cities. Surely the PD isn't dumb enough to make those wireless.

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

              • identicon
                Anonymous Coward, 18 May 2018 @ 2:41pm

                Re: Re: Re: Re: Re: Re:

                Not if I use one of these anti camera license plate covers, so that parking lot surveillance cameras cannot see your plate number. These covers prevent cameras from seeing your license number from an angle

                And like I said, jammers are FCC jurisdiction. There are no state laws in any of the 50 states that would apply, and no federal law, other the rec rules.

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

              • identicon
                Anonymous Coward, 18 May 2018 @ 2:47pm

                Re: Re: Re: Re: Re: Re:

                As far as location tracking that can be taken care of with a GPS jammer so that any death cams with location tracking won't be able to the signal from the GPS satellites.

                And if you have one of the license plate covers that keep.cameras from getting your plate numbers their cameras will do them any good when they see a blank where your plate number should be

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

          • identicon
            Anonymous Coward, 18 May 2018 @ 2:58pm

            Re: Re: Re: Re:

            Another way to would be to make it even harder to identify you by hiding your facial features using ball cap with bill adjusted where the camera cannot get your facial features very well and then wear dark glasses to hide your eyes and then have anti camera license plate covers so surveillance cameras in the area cannot get your license plate number.

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

          • identicon
            Anonymous Coward, 18 May 2018 @ 4:06pm

            Re: Re: Re: Re:

            I can bloviate all I want but would have to get evidence from the device itself, which they would never get if I used the right tools

            With laws like Sarbanes-Oxley and British pervert8ng the course of justice laws the tools have gotten better and detecting their use becomes more diccict.nice

            Merely giving out information on how to do this avoid being detected does not violate the law.

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

          • identicon
            Anonymous Coward, 18 May 2018 @ 4:20pm

            Re: Re: Re: Re:

            There is another way, or was. When Cocos was open in my town, I could eat at the California pizza kitchen in the mall across the street and connect to the Wi-Fi in Cocos using my 10 watt sub adapter.

            There would be no way I could ever be identified. I would pay for my meal with cash, so there would no money trail saying I ate at California Pizza Kitchen.

            If I wanted to download songs from BitTorrent I could do that and the riaa would never be able to trace me, as I was at California Pizza Kitchen while connecting to the Wi-Fi at cocos which was across the street

            And did not violate either the CFAA or California's computer crime statutes doing this

            Paying for my meal at California Pizza Kitchen guaranteed nothing could ever be traced to me when I did this

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

      • identicon
        Anonymous Coward, 18 May 2018 @ 4:04pm

        Re: Re:

        I can bloviate all I want but would have to get evidence from the device itself, which they would never get if I used the right tools

        With laws like Sarbanes-Oxley and British pervert8ng the course of justice laws the tools have gotten better and detecting their use becomes more diccict.

        Merely giving out information on how to do this avoid being detected does not violate the law.

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

    • identicon
      Anonymous Coward, 17 May 2018 @ 9:13pm

      Re:

      Another way I do it, is to keep my files on my home computer, and access them by VPN, never keeping any copies on my devices, and using VPN.

      I can assign drive letters on the laptop to portions of the hard disk at home.

      CBP cannot use Sarbanes Oxley, or any other law, to make me hand over the password to the VPN on my home computer. CBP cannot force you to hand over the password to your VPN.

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

      • identicon
        Anonymous Coward, 17 May 2018 @ 9:38pm

        Re: Re:

        VPNs are also good for bypassing hotel filtering. For example, one hotel I stayed at once in San Diego, wanted $25 a day for the Wifi, if you wanted to access streaming sites like Netflix or YouTube.

        Using the VPN on my home computer let me bypass those restrictions, and get the Wifi for only $10 a day.

        Using my VPN to bypass that filtering did not break either California law or federal law.

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

        • identicon
          Anonymous Coward, 18 May 2018 @ 7:48am

          Re: Re: Re:

          Using my VPN to bypass that filtering did not break either California law or federal law.

          Are you sure? Your comment sounds suspiciously like "doing something we don't like (bypassing our obnoxious rent-seeking), and involving a computer". Aren't those automatically CFAA violations, regardless of how silly the circumstances or outcome?

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

          • identicon
            Anonymous Coward, 18 May 2018 @ 10:49am

            Re: Re: Re: Re:

            Not the way I did it. Logging in to my own private VPN on my computer did not break either California law or the CFAA, because I did not break any passwords in doing so.

            Accessing my own home computer did not break the CFAA, even if it was to bypass filtering restrictions.

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

          • identicon
            Anonymous Coward, 18 May 2018 @ 1:37pm

            Re: Re: Re: Re:

            The way I did it was to stay in one 'flea bag" hotel down the street and use a 10 watt sub adapter I bought from China to connect to the west down the street when I did this 3 years ago

            The westin at that time had one free tier and two paid tiers. Using my 10 watt sub adapter I had enough send and receive from the built in linear amplifier where I could connect to the westin's Wi-Fi.

            While I probably violated FCC rules with the power level I did not violate either the CFAA or California's computer crime laws because did not crack any passwords

            Since the Wi-Fi was unencrypted and open to any device that wanted to connect, I did not break either the CFAA or any California computer crime statutes as I did not use any hacked, stolen, or otherwise illegally obtained password.

            There would have been no way for the Westin to know that somebody was connecting to to their Wi-Fi from down the street. And, like I said, I was not breaking either California o4 CFAA computer crime statutes doing so as the Wi-Fi itself was not password protected, so there is no legal action that could have laid against me except maybe violating FCC rules because the amount of power I was using

            That was the only time I ever stayed in a cheap hotel, but that was the only place at that time that had any rooms.

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

    • identicon
      Anonymous Coward, 18 May 2018 @ 11:29am

      Re:

      It would violate the rules, sure, but the fcc usually handles that as a civil matter.

      The only law broken would be FCC rules reagerding jammer. There are no other laws that would apply. Jamming is strictly an FCC matter

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

    • icon
      Bergman (profile), 20 May 2018 @ 4:28pm

      Re:

      Bad idea. Destroying evidence that a reasonable person would believe would be of value to an official investigation -- whether you know of such an investigation or not -- carries a 20 year prison sentence.

      Even if the crime you wiped evidence of is only a misdemeanor, the wiping is a 20-year felony. Even if there is no evidence of a crime on the device, you could still be convicted.

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

  • identicon
    Anonymous Coward, 17 May 2018 @ 8:29pm

    out_of_the_blue's not going to like this, is he? He hates the EFF.

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

  • identicon
    Anonymous Coward, 18 May 2018 @ 10:43am

    Another bypassing of filtering I used to do before the local taco bell franchise was sold a couple of years ago also did not break any laws

    Although they blocked VPN usage, I found a way around it. I would connect to the dsl VPN on port 443 on my computer, and would then connect to the normal PPTP VPN by using the internal up number on my own network, totally bypassing taco bell's block on VPN usage allowing me to connect to the VPN on my network allowing me to bypass their web filters. The secret was to the internal address on my network instead of the normal external up address.

    I did not break either California law or the CFAA when I did this

    Bypassing filtering does not violate the CFAA. If it did, half the teenagers in America would be criminals for bypassing the filters on their school networks.

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

  • icon
    orbitalinsertion (profile), 20 May 2018 @ 12:22am

    The government also argued allegations of future harm were too vague to support a lawsuit.

    They are certainly more than too damn vague to support the searches.

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


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