I had a bad experience at Miami airport last August as the custom officers took my laptop, made me logon, and then went through God knows what but since I did not have anything objectionable on my laptop they did not find anything that could have been troublesome. That experience made me very nervous and I contacted a lawyer just to see what the laptop search policy was. It turns out that everything the custom agents did was legal and they even could have kept my laptop without any reason. Since my travel was all pleasure and not business but the it was a company's laptop and had they kept my laptop it could have been a problem at work since I had way too much company confidential material on it. So I guess on my next pleasure trip overseas I will either not be taking a laptop or will take a personal laptop.

Anyway, here is something that caught my attention and I thought to share it with the board as there are many people who take their or company's laptops with them when they travel overseas.

http://www.abajournal.com/news/suit_to_seek_government_policy_on_laptop_border_searches/

Also, I am attaching a PDF file, which explains in legal terms why laptop searches are legal at the border. I am not a lawyer but I can get an idea from this document on the legality of the laptop searches. May be some lawyer on the board can explain the attached document in plain English.

PhD

Legal PDF 04_coletta.pdf (244.5 k)

I haven't read the above-attached law review article yet, although did look at portions of it including its conclusions and the section discussing the recent case from the Central District of California (which includes LAX) that held laptop searches at the border ARE NOT legal unless there is a reasonable suspicion of unlawful activity. My understanding is that case is still under appeal before the Ninth Circuit Court of Appeals. If it is upheld by the Ninth Circuit, it would affect border searches that take place on the West Coast, which is where the customs officers seem to be most aggressive.

As I posted today in Asia chat, the Electronic Frontier Foundation (referenced in the ABA journal article in PHDmonger's post) has an interesting website: www.eff.org. A copy of complaint in the lawsuit also referenced in PHDmonger's post is included on the website as well as other interesting information.

I also wonder what type of lawyer was contacted by PHDmonger. Although I'm not familiar with how the law has been applied to laptop searches in the jurisdiction that covers MIA (I suppose after reading the article I will know), my preliminary hunch is the advice given may be wrong. I suspect the law is not settled in that jurisdiction yet, and if this is correct, one would not be able to state definitively that the border agent acted legally. But this is my preliminary hunch given what I know about the state of the law in the Ninth Circuit and my failure to recollect any contrary decision from other jurisdictions. I should add I also don't have the information to know whether the customs agent had any articulable grounds for reasonable suspicion in PHDmonger's case.

(Message edited by LAguy on February 10, 2008)

Remember that Circuit Court decisions are only valid in the region in which that circuit covers. So it is entirely possible that the California court found laptop searches illegal and the Florida court has found them legal. Until the Supremes get involved there is no national policy.

I am not a lawyer so take this bit of information with that in mind.

EA

Actually, the Ninth Circuit has not ruled yet although the District Court in the Central District of California has. I read the District Court decision. As noted above, I don't recall it citing any contrary law from any other circuit, including the Eleventh (which covers Miami). However, my memory on this is not precise. I expect I'll be in a better position to know whether or not the Eleventh Circuit has ruled on this issue once I read the law review article linked-to above.

But you are right that even if the Ninth Circuit rules to uphold the California District Court decision, that does not bind the courts in Florida (although might guide them).

Laguy, my employer, a fortune 50 company, provides us with a legal service through a company, similar to healthcare HMOs where you pay for this service via your paycheck. It was through that company I was assigned a lawyer in my area and that is what the lawyer told me. Here is another PDF that has similar information but it is a lot smaller than the first one.

Here is what this PDF says "the government may
conduct searches of persons entering the United States without probable cause, reasonable suspicion or a warrant, as previously held in Untied States v. Montoya De Hernandez, 473 U.S. 531,538, [1985]. The court also affirmed that, for the purposes of the Fourth Amendment of the United States Constitution protecting individuals form unreasonable search and seizure, an international airport terminal is the “functional equivalent” of a border. Thus, passengers deplaning from an international flight are subject to routine border searches."

This issue has been very confusing to me and that is why I am hoping people like you and others can shed some light on this issue.

PhD

Legal Document 2 privacyrisk.pdf (95.7 k)

I work for a large manufacturing company. Apparently the risk of laptop seizures has become pretty significant - they issued an internal message telling everyone to contact the legal dept *IMMEDIATELY* if a work machine was seized at the border. (I'm sure their primary concern is the possibility of highly confidential company data being leaked.)

It is true Customs and Immigration can conduct border searches to a large extent without reasonable suspicion or a warrant. However, there appear to be some exceptions.

For example, they cannot conduct strip searches willy nilly. Again, based on memory and not having looked at the issue recently, I believe a strip search would require either reasonable suspicion, or possibly probable cause (can't remember which).

The U.S. District Court case I mentioned earlier also made an exception to the general rule about border searches but the exception pertains only to laptops (not cameras, e.g.), arguing that laptops include your personal thoughts, etc., and therefore constitutionally cannot be searched without a reasonable suspicion.

However, it is not yet clear whether the Ninth Circuit is going to uphold the District Court's ruling carving out this exception for laptops. Or, whether the Supreme Court will take the case after the appeal is decided. Second, if the Ninth Circuit upholds the District Court, that would only bind the Ninth Circuit, which includes San Diego, LAX, SFO, Portland, Seattle, and so forth.

But also to be contended with is the law enforcement tendency to manufacture reasonable suspicion when justifying a search as well as the Bush Administration's tendency to ignore the rule of law (aka breaking the law), particularly when they can spin a justification based on some manufactured national security ground. It is for this reason the law suit filed by EFF and the Asian Law Caucus (or whatever they are called) is particularly important since it asks for statistical information about such things as how many laptop searches are made, etc. If this information were made public, and it were found that there are a hell of a lot (e.g., systematic and numerous searches), it would make it much more difficult for ICE to argue that each search was made based on reasonable suspicion.

In any event, one of the problems is the law really does not appear to be clear yet. I am already debating such issues as whether I will risk having them confiscate my laptop (they eventually WOULD have to return it) rather than give them passwords, etc. This whole thing absolutely infuriates me. The last time I went through customs was the first time I had to go through secondary, and frankly, the "officers" were friggin' morons. I resent that they have the power, or, at least, think they have the power, to conduct such intrusive searches for no legitimate law enforcement purpose.

(Message edited by LAguy on February 10, 2008)

Just one other comment, and this relates to my question about what type of lawyer was consulted. Lawyers tend to be specialized; those that are general lawyers often don't know that much about particular specializations. Most people understand you wouldn't go to a family practitioner to have brain surgery, but don't have the experience to understand with lawyers the same principle tends to apply, although perhaps not as dramatically. So, particularly in an area of the law that is not well settled, lawyers who have not specialized in that area may not have the best or latest information, particularly if they fail to do a lot of research to learn about the area.


In that regard, I am no expert in this area so what I say here is not definitive. However, I am sufficiently interested in these issues for personal, perhaps axe-grinding, reasons (and these include reasons that don't really relate to the law, such as the degree to which the Immigration and Customs officers seem to go out of their way to piss off foreigners, thereby adding to the U.S.'s low standing in the world) to want to learn more about the area of border enforcement and our rights at the border, and am hoping I find the time to do so.

Laguy
As one of those "aliens" that "Immigration and Customs officers seem to go out of their way to piss off". I have to tell you that traveling to the States which once was the highlight of my year is now something a dread. It’s interesting that all this security has done nothing to make America safe, in fact if home land in-security is to be believed the good old USA has not been safe (condition green) for years. All that has happened in the last 8 years is a total corrosion of your civil rights of which the above is just one of many, many examples.

CNN has a story about the laptop searches and its legality on their page. Here is the link:

http://www.cnn.com/2008/TRAVEL/02/11/laptop.searches/index.html

PhD

Very interesting discussion. I'm not a 4th amendment expert either, but I hope the Plaintiffs in this lawsuit are well funded and well represented. It perplexes me that the government can argue (w/o smirking) that a laptop with 80-150 gigs of information on average is the same thing as searching a briefcase with 20-30 pages of documents. How do they expect American businesses to be productive if businesspeople are now so concerned about taking their confidential information on trips on their laptops/USB drives for fear of random, unpredictable and invasive searches at the border. I hope there are other judges out there that will think that it is reasonable to require that there be at least, the minimal level of reasonable suspicion of illicit activity, before being able to rifle through gigs of RAM on our laptops.

But here is what was said before, I’d bet that the vast majority of searches are “consented” to, by duress, trickery etc. Being stopped at the border, or anywhere, is a highly coercive and stressful situation to begin with. Many of these inspectors know how to obtain “consent” by training, experience or otherwise.

One hopeful sign is that not only did CNN report on this today, but so too did some local network affiliates. If business people and organizations start complaining about laptop searches and confiscations, and this gets sufficient media attention, perhaps Congress would pass a bill requiring at least reasonable suspicion to search a laptop at the border.

Of course, even should they do this, Bush might veto such a measure. But the media attention could also influence judges by sensitizing them to the issue in a manner that is sympathetic.

One problem with the Central District of California case mentioned earlier is that while it adopted a reasonable suspicion requirement for a laptop search, it did so in the context of a case involving child pornography. Judge Pregerson showed some courage in holding the Fourth Amendment applied anyway.

Many judges (and legislators) would not be so courageous in applying constitutional protections in a case involving such facts. OTOH, if the issue is one of protecting the confidentiality of business documents, and so forth, the notion of applying a reasonable suspicion standard to laptop searches becomes more palatable and judges may be more inclined to impose the standard.

Along these lines, that this issue is now in the mainstream media in the context of protection for business documents, and so forth, suggests this is probably as a good time as any to write a letter on the subject to your Senators and/or Congressperson.

(Message edited by LAguy on February 11, 2008)

INTERESTING RUMINATIONS ON THE ARNOLD V. US. CASE

http://www.computer.org/portal/site/security/menuitem.6f7b2414551cb84651286b108bcd45f3/index.jsp?&pName=security_level1_article&TheCat=1001&path=security/2007/n2&file=pri.xml&

[WHY REASONABLE SUSPICION WAS LACKING IN ARNOLD]

"The court’s determination of a lack of reasonable suspicion rested on the fact that Officer Peng:

had only a vague and inconsistent recollection of the circumstances surrounding the search;

characterized Arnold as “disheveled” and then admitted the term came not from her but from government’s counsel; and

selected Arnold because “he did not become agitated when she pulled him aside for secondary questioning”—in her view, US citizens who are so selected “typically become agitated and mad.”

Further compromising the testimony, Officer Peng’s suspicions consisted of a one-page memo she wrote nearly a year after the search, at the government’s request and based, in part, on recollections by others."

[COMPUTER SEARCH RISING TO THE LEVEL OF A SEARCH OF THE "MIND"]

"Most relevant for future cases, the court reasoned that, although not as invasive as a body cavity search, “the search of one’s private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person.”6 The court supported its proposition with the following analogy:

“This is because electronic storage devices function as an extension of our own memory. … Therefore, government intrusions into the mind—specifically those that would cause fear or apprehension in a reasonable person—are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature.”6

An analogy between human memory and computer memory is inaccurate and likely misleading for future judicial consideration, but the court was on to something. Because people entrust intimate, sensitive data to laptops, a government’s search of a laptop deserves to be equated to searching a person’s thoughts and thought processes, and that clearly does amount to an invasive search. The court didn’t advocate permissive relaxation of border protection—only that a reasonable ground for suspicion exist if the government wishes to conduct an invasive search of a laptop without first obtaining a warrant.

[5TH AMENDMENT SHIELD]?

"...A further aspect, not before the court in this case, is the plausible scenario of Arnold’s having encrypted all data on his hard drive (except for the file folders visible on the desktop). The CBP officers would have seen nothing when they clicked on the desktop icons. Could CBP have attempted, with or without a warrant, to compel Arnold to disclose the password? The answer would probably depend on whether he had memorized the password or written it down on paper in his possession or in a unencrypted document stored on his laptop. Arnold could refuse to disclose what he had memorized, and probably justify it with a Fifth Amendment right against self-incrimination. If the password were on paper in his possession or stored in a laptop file, the reasoning in Arnold suggests that the court might not require a warrant to search him for the paper, but would still require that CBP have a particularized suspicion (or a warrant) to search the unencrypted laptop files for the password because by encrypting the data Arnold would demonstrate both a subjectively and objectively reasonable expectation of privacy. Moreover, it’s doubtful that CBP could legally compel Arnold to assist in their search by identifying the paper or the file containing the password."

[fascinating idea, using the 5th as a shield]

IMO, having a reasonable suspicion req't (lowest threshhold) would not hurt the gov'ts efforts to catching pervs -- which we all suppport. There is always a balancing of the good vs. the harm and always a need to have some reasonable reign on govt actions. As it now stands, the gov't is summarily violating (in one of the harshest ways) the CONSTITUTIONAL RIGHTS of thousands of law abiding citizens by having no standards. The cost is not only annoyance, but I can seriously see businesses in this global economy being affected if the businesses' legitimate confidences are not protected. This is in addition to the intrusive violation of the "mind".

IMO, this is a federal case,which is always good. Federal judges have life tenure and are probably the smartest of the bunch in training background and honoring precedents. I'm reminded of the Bible Thumper Conservative Fed Judge in Tennessee (?) who ruled against the "intelligent" design theory being taught in the Dover schools recently when the evidence was so clear and persuasive that intelligent design was unsupported by the evidence and science.

Now, what the Supreme Court would do is anyone's guess. I'd think that big businesses would weigh in and get the attention of the Arch Convervatives. I'd also hope they remember their core beliefs that the less gov't intrusion the better (notwithstanding their law and order inclinations).

(Message edited by merlin on February 11, 2008)

Does anyone have recent statistics on how many pervs they catch at the border anyway? Last I looked, perhaps a year ago, it appeared to be truly de minimus.

It is one thing to have wholesale laptop searches for the purpose of catching pervs if, in fact, they catch a lot this way (I still would prefer a reasonable suspicion standard though) but quite another when they are searching through all these laptops and finding essentially nothing. In the latter case, which I suspect is what is really happening, it starts looking a lot more like harassment than legitimate law enforcement, quite apart from any Fourth Amendment issues raised.

Although I realize they have other pretenses for their interest in laptops, most of us on this board know that at least when single men who are U.S. citizens return to the country from Asia, they are not looking for evidence of terrorist plots.

I like the fact that the agent said that he was suspicious because he didn't get agitated and angry, as most US citizens do. That reinforces my belief that if Customs/Immigration fucks with you, you should make your displeasure known. Nothing violent, but certainly a measured yet forceful response and lots of complaining is probably a good thing. It does make sense - the guilty generally don't want attention brought on them.

>>>in her view, US citizens who are so selected “typically become agitated and mad.”

Indeed - so we're supposed to get at least a little annoyed if they send us to secondary. I got nothing to hide anyhow, but this is duly noted.

Unfettered discretion in the hands of a WG federal employee, is pretty scary stuff. If these agents can be made to take one second to think through a search request by having some standard (any standard), I’d bet they’d caution on the side of not having to go through all the paperwork.

Let’s hope that when the dems take the white house and clean house at the Justice Dept, they’ll get gov’t attorneys who’ll focus on real priorities like ACTUALLY catching terrorist and settling the recent case that was filed referenced above.

So if you refuse to provide them a password to any password protected file, what do you think is going to happen?

My guess is that they will just confiscate your laptop from you, take it into a back room pull your hard drive out and make a copy of it.

My guess is that when you get it back in a few months it will have some extra software on it, and it won't work for shit.

RG

Yes, they could confiscate the computer against your wishes and it's likely the obstinate traveler will be inconvenienced or harassed. I realize most of us, including me, would want to opt out of such an ordeal. But IMO, I don't know if it can be presumed that the run-of-the-mill border agent or supervisor will unilaterally decide to confiscate your computer. There is a powerful evidentiary punishment used against prosecutors who obtain evidence illegally -- they cannot use it at trial if the prosecution obtains the evidence illegally and the 5th amendment is a powerful privilege. Do they need a warrant for encrypted info, likely ? Did you consent validly to the search, maybe? Was the assertion of the 5th amend right, proper ? etc etc. I can't imagine any WG federal employee with 3 nuerons wanting to unilaterally take actions which may later bring egg to his/her face and department. The agent would llikely error on getting approval from their gov't attorney and will need to fill out reams of paperwork (I never underestimate the power of filling out reams of paperworkt). I'd hope that a gov't attorney would think through the consequences and problems to see wether a warrantless search of would be worth it.


To state the obvious, nothing contained in this thread should be construed as legal advice, just the stream of thought consciousness and opinions of a concerned fellow monger.

The easiest way to avoid any undue hassle is probably to zip up your nasty pics into a password protected ZIP file, give it an innocuous name, and bury it deep in some obtuse directory structure. (If you really want to be tricky you could even rename the zip file to something like UserManual.pdf, and drop in in some program directory. Who would ever give it a second look?)

I suspect when they do cursory inspections they're just searching for image files with known file extensions. Even if they do decide to search for ZIP files, they'll probably not take the time to ask you to unlock files that don't appear to be related to what they're looking for. A typical machine has tens of thousands of files in it - secondary dude does not have time to go look at every one.

And don't forget to leave a few pics of beaches, temples, etc in your "My Documents" folder for their viewing pleasure.

Merlin,

But you see, as stated in the article, the Customs/Immigration guys are trained to handle confidential information. So they must be cool, right?

Phoenixguy,

Just so that you know there are programs available that will scan your hard drive, read each single file and determine what kind of file it is no matter what you have named it. This is available commercially and I am sure US Govt. will have something that is more sophisticated than this and not available commercially; similar to PGP that was used by government years before it was commercially available. While what you suggest may work if they don't keep your laptop. If they keep your laptop and even if they don't but scan it using their own tools then nothing is hidden anymore. BTW, the incident I had back in August 07, I ended up spending 3 hours with custom agents, they scanned all my hard drives, my memory sticks, went through my camera, and cell phone. I missed my connecting flight and what they told me as far as telling the airline that I was held up at the custom and airline would accommodate me did not work since I had two tickets, one on AA for Colombia and the other one on Northwest. If I had a single ticket then the airline would have accommodated me (I think but not sure). Anyways, be careful, custom agents are pretty computer literate these days.

PhD

Would be interesting to see some group file a Freedom of Information request to see the customs training manuals and all communications sent to the officers at the borders concerning the execution of their duties. Just what are these people being told to do by the white house?

CNN currently has an article on this:
http://www.cnn.com/2008/TRAVEL/02/11/laptop.searches/index.html


One of the more interesting reader responses:

"Well, let me chime in as a victim of the discussed policy, I returned from a business trip from Russia to the United States at Logan International Airport. For the racial profilers I am a white, American citizen, average appearance. My work is technology driven and I carry two laptops, a pda, and a blackberry.

One of my laptops is standard Vista, the other is a command prompt driving Linux operating system. Well, upon arrival home, the customs agent wanted to check everything out. The pda and blackberry were no problem, the vista machine was a breeze because I keep it virtually empty. But the Linux laptop was a nightmare.

First off, the guy checking the electronics basically only understood Windows and some Mac OS (barely at that), he didn't have a clue, he kept asking me things like bring up your pictures, bring up your text files. I could have been just running him in circles if i wanted to because nothing had the shiny simple buttons of windows.

His boss came over and took a quick look at the laptop and said they would need to keep it for inspection and I would receive it after they were done. I asked to have some way of tracking it, told i couldn't, asked if i could be present during the inspection, i couldn't, asked for any contact info and was told to move along through customs. Basically, I was told to write down my information and they would contact me when I could have it back and said it wouldn't take very long.

That was FIVE MONTHS AGO!!!! I have tried contacting every TSA - Logan Airport - customs office that I could, and nobody could tell me where the laptop was. I have pretty much written it off by now, I am sure I will get a "lost" letter soon, probably without any compensation.

The moral of the story is, if you are traveling internationally, DO NOT HAVE ANYTHING OTHER THAN A MAINSTREAM OPERATING SYSTEM on your laptop, if the simpletons at customs can't work it, they keep it and later steal/destroy it. I am not the only person that this has happened to, linux users of the world beware, your laptop probably won't make it through customs in your hands. To the guy that said could you plead the fifth if you had a Linux operating system, sure you could, if you don't mind being out a laptop with NO financial compensation."

You have got to be shitting us!! If I read this right you are saying that they took your laptop and refused to give you any kind of documentation on this??

Myself I have moved on from Windows operating systems. I have a Mac, and find that it's a lot easier from a consumer's view.

RG

Not mine Rg - that was some guy posting on the CNN website. But clearly, this is an organization that has gone completely power mad, to take high value personal items and keep them for months, without even so much as reasonable suspicion that any crime has been committed.

Hell guys you know that the security team guarding your boards is highly qualified, of course most of these "square badges" could not get jobs there the main requirement is saying "Would you like fries with that?",but you should trust them any way after all it's the patriotic thing to do...

As much as I detest ICE agents, IMO, detaining a computer for such a lengthy period of time is the rare occurrence. If it was otherwise, I'd be hearing more complaints from colleagues and clients' whose livelihoods depend on frequent international travel.

It appears this guy who had his computer taken impliedly consented to the ICE supervisor's unilateral decision to detain the computer. I didn't see any emphatic "no" to the confiscation, just whether the guy could get documents or observe. I would have said "no" to the confiscation and make a record of my non-consent. I almost have to consider this scenario, as I often have time sensitive proprietary information as well as confidential client communications on my CPU. If push comes to shove, I'd get an attorney to apply for an emergency restraining order against the gov't based on exigent circumstances to get my cpu back.

(Message edited by merlin on February 13, 2008)

>>I often have time sensitive proprietary information as well as confidential client communications on my CPU. If push comes to shove, I'd get an attorney to apply for an emergency restraining order against the gov't based on exigent circumstances to get my cpu back.

Good luck should it ever come to that. From what I can see of it, the Fed Gov't doesn't get in a hurry for any average Joe. And court orders don't mean shiite if there's not some *individual* on the hook for it - the gov't can just have their lawyers appeal, delay, appeal again...or even more convenient, just ignore the order until a judge gets pissed enough to haul someone into court to answer for it (which would likely take many months, or years, to happen).

Phoenixguy:

Good luck. When you cross the border, they rule.

MM

I still think it's the rare occassion when ICE will confiscate a cpu for many months w/o a really good reason, so my thoughts about taking legal measures are just ruminations that I believe some corporations may be forced into if this stuff does happen.

I guess the ICE people know that most people or JOE will have a fatalistic attitude about taking proactive measures against ICE; but a bit different when ticking off some litigious and moneyed multi-national corporation that loses substantial sums or a key economic advantage through the gov't's arbitrary action of confiscating a cpu for months b/c someone looked dissheveled or didn't manifest anger at being stopped.

Also, it would be ironic that a govt dept or ICE here (which itself enforces customs immigration rules) would knowingly and willfully ignore a federal judge's orders. Assuming ICE ignores a federal court order, it would not take years to get a hearing before judge to decide if contempt (money or jail time) is in order. Maybe a month or two after service of the order. An appeal of contempt citation? Very few case are successful on appeal in the first place and appellate courts give trial courts deference given that that trial court heard and assessed the evidence and witnesses. Even assuming someone would decide its worth the cost and expenes of appealing contempt charges, would they still do so knowing that the contempt order will be alive and well until a year or more later when an appellate court finally makes a rare reversal.

Finally, IMO, unlikely that the GS-13 ICE supervisor will keep his job for long when he subjects his dept to legal fees, sanctions and bad publicity.

(Message edited by merlin on February 14, 2008)

Well, the news on Arnold (the case holding laptop searches need reasonable suspicion, the same standard as for strip searches at the border) doesn't look good, if the NY Times reporter who filed the article below (in early January) is correct. As I suggested when this case first came out in another thread, I had my doubts as to whether the Ninth Circuit would uphold Judge Pregerson's decision (at least one other board member was more optimistic at that time). Although the decision apparently is not out yet, it appears based on the judges questions, etc., at oral arguments, they are likely to overrule, thereby essentially giving customs the right to unlimited laptop searches for no reason at the border (in the Western States covered by the Ninth Circuit).

On another matter, the article does suggest one probably does not have to give up encryption passwords, although I suspect not doing so would result in additional harassment, possibly even including temporary confiscation of the laptop. A subtle legal issue, which may have some real consequences though, is whether you would actually have to invoke the Fifth Amendment officially to justify not giving up your password. If you do this though, customs might then feel justified in confiscating the laptop on the grounds you just said you wouldn't give up the password on the grounds it might incriminate you.

Anyway, if I hear one more person say the U.S. is the greatest country in the world, I'm going to puke.

http://www.nytimes.com/2008/01/07/us/07bar.html?_r=1&scp=1&sq=border+search+Arnold&st=nyt&oref=slogin

There is a chance you would need to log in to the NY Times website to see the article. If that is the case, you can register for free, and as far as I've been able to tell, there are no negative consequences from signing up.

I'd be curious which 3 judges were the ones likely to reverse (maybe bad luck of the draw with the 3 most conservative or 3 most obtuse of the bunch). Also, the 9th circuit as a whole is traditionally more progressive, I hope Arnold will use his travel money to pay for a further appeal to the fully enpaneled 9th circuit for the next round. And then drag it on for another few years until Barak Obama cleans house at Justice and the Justice Dept decides to better use their resources to target real threats.

Worthy of note is the law professor's comment and also the following,

"An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government’s ability to acquire information."

Interesting to note that the Association of Executives and the Electronic Frontier Foundation (who filed a suit of their own recently re: border searches) filed a brief in this action notwithstanding the less than likeable subject and appellant. The corporate big wigs are paying attn.

I think the far more compelling case is the lawsuit filed by the Electronics Frontier Foundation. More resources, better represented and Plaintiffs who are not engaged in illicit acts like Arnold. These are the same guys that are heading the charge against the Bushies regarding the warrantless wiretapping issue. Recall, the big corporations that are assisting in the wiretapping are getting sued to oblivion and are running to the govt for some sort of immunity from all these lawsuits.

I don't know who the panel is, but something tells me Stephen Reinhardt is not one of them. LOL (inside lawyers' joke).

As to the EFF lawsuit, while I wish them all the luck, I will be surprised if they succeed, although haven't analyzed this closely. The problem (I think) is the government is going to say the disclosures the EFF seek impinge the domain of law enforcement and thereby fall outside the FOIA. But as to resources, they (the EFF) now have some of my money, and I hope they get some other board members' as well. http://www.eff.org/ They are now on my list of civil liberties organizations that can potentially make a difference (along with the ACLU, http://www.aclu.org/).

(Message edited by LAguy on February 29, 2008)

Yes, I've been sending the EFF my lunch money and offered to carry their briefcases ;)
I still remain optimistic that a dem president will inject some reality testing into Justice -- i.e. the lowest level of scrutiny (reas suspicion) would not necessarily impinge upon law enforcements ability to catch miscreants and terrorist.

Laptop searches at the border are upheld....

From the following article:

http://www.dailybreeze.com/ci_9009312

It may hold our financial records, innermost thoughts and pictures of our loved ones - but there's nothing private about a laptop computer at the nation's borders, a federal appeals court ruled Monday.

In a closely watched search-and-seizure case, the 9th U.S. Circuit Court of Appeals overturned a lower court's decision to toss evidence of alleged child pornography found on a traveler's computer at Los Angeles International Airport.

Michael Timothy Arnold was a 44-year-old Orange County math teacher when he arrived July 17, 2005, at the LAX customs counter after a three-week trip in the Philippines.

Two U.S. Customs and Border Patrol officers turned on his laptop, clicked on a file and found a photo of two nude women, according to the opinion.

Arnold was detained and his computer and other equipment were searched. Numerous images of alleged child pornography were found.

Arnold was later charged with possessing and transporting child pornography, and faces up to 30 years in federal prison if convicted.

The decision doesn't suprise me. Saddens me, yes, suprises me, no. Given your limited protection at border crossing and the mood of the courts I doubt the 9th circuit appelate court wants to be overturned by Justice Roberts and his wizards. I hope this case isn't granted cert, as I don't want them using it to make the law more firm for future cases. I'd rather the Supreme Court get a better fact pattern to write law with.

The Senate will hold hearings tomorrow on "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel"

I expect absolutely nothing will change after this hearing.

-----------------------------

"TIME CHANGE -- Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel "
Senate Judiciary Committee
Subcommittee on the Constitution, Civil Rights and Property Rights
DATE: June 25, 2008
TIME: 09:00 AM
ROOM: Select Building-226
OFFICIAL HEARING NOTICE / WITNESS LIST:



June 20, 2008



NOTICE OF SUBCOMMITTEE HEARING

TIME CHANGE TO 9:00 a.m.

The hearing on “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel” scheduled by the Senate Committee on the Judiciary Subcommittee on the Constitution for Wednesday, June 25, 2008 in the Senate Dirksen Office Building, Room 226 will begin at 9:00 a.m. rather than the previously scheduled time of 9:30 a.m.

Chairman Feingold will preside.

By order of the Chairman

Updated Witness List

Hearing before the Senate Committee on the Judiciary
Subcommittee on the Constitution
on
“Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel”

Wednesday, June 25
Dirksen Senate Office Building Room 226
9:00 a.m.

James Jay Carafano, Ph.D.
Assistant Director, Kathryn and Shelby Cullom Davis Institute for International Studies, and Senior Research Fellow, Douglas and Sarah Allison Center for Foreign Policy Studies
The Heritage Foundation
Washington, DC

Larry Cunningham
Assistant District Attorney, Bronx County
(Starting 7/1/08) Assistant Professor of Legal Writing, St. John’s University School of Law
Queens, NY

Susan K. Gurley
Executive Director
Association of Corporate Travel Executives
Alexandria, VA

Farhana Khera
President and Executive Director
Muslim Advocates
San Francisco, CA

Nathan A. Sales
Assistant Professor of Law
George Mason University School of Law
Arlington, VA

Peter P. Swire
Professor, Moritz College of Law, The Ohio State University
Senior Fellow, Center for American Progress
Washington, DC

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
San Francisco, CA

It is a good start though. Perhaps this will set the stage for a change in policy once Obama wins the presidency.

On the witness list:

Susan K. Gurley
Executive Director
Association of Corporate Travel Executives

They might pay this one some attention - she's probably representing a lot of big name companies - companies very unhappy about the possibility of having their laptops with compnay confidential info confiscated. But it's hard to see what they could change, really. Maybe some seriously negative publicity will throttle the border patrol gestapo a little. You've got to imagine the director of that agency won't be too fond of the negative attention.

I got this off of Macworld:

http://www.macworld.com/article/134162/2008/06/laptop_searches.html

Macworld Security
Senators question border laptop searches
by Grant Gross, IDG News Service Jun 25, 2008 5:23 pm2 Comments 20
Two U.S. senators called on U.S. Customs and Border Protection (CBP) to back off its assertion that it can search laptops and other electronic devices owned by U.S. citizens returning to the country without the need for reasonable suspicion of a crime or probable cause.

Senators Russell Feingold, a Wisconsin Democrat, and Patrick Leahy, a Vermont Democrat, both urged CBP to reconsider its policy that apparently has lead to frequent searches of laptops, digital cameras and handheld devices at borders.

"If you asked [U.S. residents] whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs, and examine the Web sites they have visited, all without any suspicion of wrongdoing, I think those same Americans would say that the government has absolutely no right to do that," said Feingold, chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights. "And if you asked him whether that actually happens, they would say, 'not in the United States of America.'"

Two witnesses at a hearing before the subcommittee Wednesday described widespread CBP searches of electronic devices at borders, with data copies and devices sometimes confiscated for weeks. One Muslim executive at a U.S. tech vendor has been subjected to border interrogations at least eight times since early 2007, said Farhana Khera, president and executive director of Muslim Advocates.

Other travelers have been asked why they are Muslim, were questioned about their views of U.S. presidential candidates and had laptops and cell phones searched or confiscated, Khera said. "Innocent Muslim, Arab and South Asian Americans from all walks of life have had their electronic devices searched by CBP agents, or have been interrogated by CBP agents ... all without any reasonable suspicion that the individuals were engaged in unlawful activity," she said.

In a February survey of its membership, the Association of Corporate Travel Executives found that 7 percent said they've had electronic devices seized at the U.S. border, said Susan Gurley, executive director of the trade group. It can take weeks to have those devices returned, and the seizures can disrupt the owners' work and require companies to buy costly replacements, she said.

Half of the survey respondents said a seizure of an electronic device could damage their standing within their companies, Gurley said. "These devices constitute the offices of today," Gurley said.

But other witnesses at the hearing suggested laptops should be treated no differently than luggage, which CBP can search without reasonable suspicion or probable cause. U.S. courts have recognized that there's a less restrictive standard for "routine" searches and seizures at U.S. borders than police searches within the nation, said Nathan Sales, a law professor at George Mason University and former official at the U.S. Department of Homeland Security.

Searches of electronic devices at borders have caught several child pornographers and can be used to prevent terrorist attacks, he said.

CBP should be more open about its electronic search policies, Sales said, but U.S. courts have recognized no difference between searches of luggage and of laptops. "The privacy protections we enjoy shouldn't depend on whether we store our information on paper or in the digital world," Sales said. "Officers can search mail, they can search address books, they can search photo albums at the border with no suspicion at all. Why should the rule change when we keep our correspondence, our contacts or our pictures on a laptop?"

Senator Sam Brownback, a Kansas Republican, agreed that CBP needs more authority to conduct searches at the border than other law enforcement officials have inside the U.S. Only in a few cases, such as strip searches, are CBP officials required to have suspicions of illegal activity, he noted.

"I hope we can go through this on the basis of protecting an individual's rights, but also looking at trying to protect the country," Brownback said.

However, Brownback said he would not want his BlackBerry searched by border agents.

Lee Tien, a senior staff attorney with the Electronic Frontier Foundation (EFF), acknowledged that border agents have more power to conduct searches than internal U.S. police. But searching and seizing laptops, which often contain an "autobiography" of their owners, should be considered unreasonable and invasive under the U.S. Constitution's Fourth Amendment banning such searches, he said.

"EFF does not dispute that the Fourth Amendment works differently at the border," Tien said. "But 'differently' does not mean 'not at all.'"

I wonder what is in Brownback's BlackBerry? It's ok to search my laptop without cause, but not his BlackBerry WTF?? I guess Orwell was right.

RG

>>My guess is that they will just confiscate your laptop from you, take it into a back room pull your hard drive out and make a copy of it.>>

Roadglide,
According to a former CH member, the border jerks aren't set up to provide fast data analysis like that. They put your laptop in a box and send it to wherever federal agencies perform their analyses.

Merlin,
The laptops are never returned, regardless of what is or is not found. Consider them a donation to the next surplus sale by the US government. I would like to see the ratio of laptops confiscated as to returned vs. written off. I already know the answer.

(Message edited by fcbkpr on July 01, 2008)

(Message edited by fcbkpr on July 01, 2008)