Feingold Points Out That DHS's Chertoff Is Misleading On Border Laptop Searches

from the reasonable-cause? dept

Following the release of Homeland Security's policies for searching laptops at the border, where the rules are, effectively, "anything goes," DHS boss Michael Chertoff claimed that laptop searches were only done when the border guard had a "suspicion" and placed that individual in "secondary inspection." However, Senator Russ Feingold has now hit back, pointing out that the official DHS policies say absolutely nothing about there needing to be a suspicion or that laptop searches only happen on secondary inspection. If Chertoff were being honest, why wouldn't those things be in the official policy? And, if Chertoff insists that DHS will only do searches when there is a real suspicion, what's wrong with following the "probable cause" standard that it insists it should be allowed to ignore? It's nice to see Senator Feingold asking these questions.

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Will DHS Border Search Logic Be Used To Allow Gov't Screening Of All Internet Traffic?

from the bad-potential-precedent dept

We've already explained how ridiculous it is for DHS to say that border patrol agents need to search laptops to prevent dangerous information from getting into the country. Obviously, if that was the intent of the individual, they'd just send the info electronically and not have to deal with any customs agents. Slashdot points us to a blog post by Steven M. Bellovin where he takes that same thought and flips it on its head, noting that, based on the DHS's statements, DHS may believe that it also has the right to scan any data entering or leaving the country. On top of that, he points out that this could potentially mean that if you encrypt that data you send over a border (say, via a VPN), you could potentially be violating laws that bans "hiding" goods that you send over the border. While the courts have not at all ruled in this way, you could pretty easily see the government making this sort of case.

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

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

The courts have said that US Customs officials do not need probable cause to search laptops. While some Senators are questioning why Department of Homeland Security is searching laptops without probable cause, the administration is working hard to defend such searches at the border as reasonable. However, they're not making very much sense. The article trots out James Jay Carafano from the Heritage Foundation with a couple of interesting statements. Let's take them in order. First:

"The idea that we would create some kind of sanctuary for criminals and terrorists to carry things across the border to me is absolutely ludicrous."

Well, that's not just an exaggeration, it's wrong. Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border? Of course that's not true. Data flows across borders via the network all the time -- with no customs review whatsoever. No one is walking across the border with a laptop thinking that's the best way to get some data across the border. Then there's this statement:

"It's also unrealistic to require probable cause when you think about the millions of people a day who come in and go out of the country."

Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America." Yet, we don't hear Carafano pushing for a removal of probable cause for searches on the street, do we?

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

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Senators Not Thrilled About Laptop Searches At The Border

from the back-off,-customs dept

It would appear that the EFF's efforts to get Congress to look into laptop searches at the border has worked. This is over the question of whether or not it's legal, with no suspicion of wrongdoing, for customs officials to take your laptop and search through the contents. Even if the courts have said it's legal, it still seems quite troubling to many people who believe it's an unreasonable search. Some Senators have now asked Customs to reconsider its stance on this, with Senator Russ Feingold noting:

"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. And if you asked him whether that actually happens, they would say, 'not in the United States of America.'"

Somehow, I doubt that these hearings will lead to much, but at least someone in DC is concerned about this issue.

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EFF Asks Appeals Court To Rehear Case On Laptop Searches At The Border

from the let's-try-this-again dept

Back in April, we noted that an appeals court reversed the one lower court ruling that found that customs agents at the border were overstepping their bounds by searching and confiscating travelers' laptops without probable cause. This brought the 9th circuit into alignment with our circuits, so that, generally speaking, it appeared our judicial system had decided that your 4th Amendment rights do not apply at the border. This is particularly problematic for laptops, because unlike tangible goods that you pack, you don't choose to "pack" all the data on your laptop. In other words, with most tangible goods you bring across the border, it's done as a proactive choice. With the data on your laptop, it's the opposite. Unless you proactively delete it from your computer, it's there.

The EFF already has demanded Congress look into this issue, and now it's urged the full appeals court to review this latest decision. Given that all the other circuit courts have also ruled this way, it may be difficult to get the court to agree to rehear the case (or, if they do, to change the decision). At some point, it's likely this issue will get appealed to the Supreme Court as well -- though it will be interesting to see if the Supreme Court takes the case without a seeing a split in the lower courts.

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