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Re: READ Suspicion not required for border laptop seizures
From: David Farber <dave () farber net>
Date: Sat, 2 Aug 2008 09:51:28 -0700


________________________________________
From: Brock N. Meeks [bmeeks () cox net]
Sent: Saturday, August 02, 2008 11:36 AM
To: David Farber
Subject: Re: [IP] Re:       Suspicion not required for border laptop seizures

I did a story back in January of 2006 that uncovered how DHS was routinely
opening mail coming into  the U.S. When DHS opens the mail, they slap an
ugly splotch of green colored wide tape on the letter to close it back up;
the tape is imprinted with some phrase identifying that DHS has been
snooping around in your mail.

However, as I was digging into the policies of both CBP and ICE it appears
that letters "in the U.S. Postal System" have more protection than the
contents of your hard drive.

CBP Policy:

Sealed Letter Class Mail. Officers may not read or permit others to read
correspondence contained in sealed letter class mail (the international
equivalent of First Class) without an appropriate search warrant or consent.
Only articles in the postal system are deemed "mail." Letters carried by
individuals or private carriers such as DHL, UPS, or Federal Express, for
example, are not considered to be mail, even if they are stamped, and thus
are subject to a border search as provided in this policy.


ICE:

Sealed Letter Class Mail.
a) Border searches of mail are governed by particularized law and policy.
See 19 C.F.R. Part 145; 19 U.S.C. § 1583. Any possible border search of
letter class mail ("LC") shall be coordinated with CBP Officers assigned to
such international mail facility and must conform to the guidelines set
forth in CBP Handbook 3200-06A, International Mail Operations and
Enforcement Handbook, or any successor document. Additionally, the U.S.
Postal Service requires that it be notified and present at any border search
of LC mail. Consultation with the ICE Office of Chief Counsel or the local
U.S. Attorney's Office is recommended when considering a border search of
any article that may be considered mail.

b) Letters carried by individuals or private caniers such as DHL, UPS, or
Federal Express, for example, are not considered to be mail, even ifthey are
stamped, and thus are subject to border search as provided in this
Directive. See 19 C.F.R. § 145.3.


On 8/1/08 8:05 PM, "David Farber" <dave () farber net> wrote:


________________________________________
From: Declan McCullagh [declan () well com]
Sent: Friday, August 01, 2008 7:22 PM
To: David Farber
Cc: Steven M. Bellovin
Subject: Re: [IP] Re:     Suspicion not required for border laptop seizures

Steven M. Bellovin wrote:
The wording of the policy bothers me even more than the policy itself.
For one thing, while the discussion has been in terms of "they can do
this when you enter the country", the policy applies to "information
possessed by individuals who are encountered by CBP at the border,
functional equivalent of the border, or extended border."  Does that
apply to outgoing laptops?  The document says speaks of "evidence
of embargo violations or other import or export control laws."  Export?

Good point. The new DHS policy applies to _outgoing_ laptops too.
Specifically, DHS has claimed the right to seize the hardware and
"analyze the information transported by any individual attempting to
enter, re-enter, depart, pass through, or reside in the United States."
See my article for details:
http://news.cnet.com/8301-13578_3-10004646-38.html

The DHS policy also mentions "copyright or trademark laws." I see no
reason why this wouldn't apply to scanning hard drives and iPods for
evidence of pirated software, music, videos, etc. -- which in some cases
would provide evidence of criminal violations of the NET Act. At the
very least it gives the *AAs a new opportunity for political activism.

I'm also unclear on what the "functional equivalent of the border, or
extended border" are.  Given the policies about checking for
undocumented aliens on I-5 north of San Diego, does this mean that CBP
can look at any data within San Diego?  What are their limits?

A Congressional Research Service report defines functional equivalents
thusly: (http://www.au.af.mil/au/awc/awcgate/crs/rl31826.pdf)

The ³functional equivalent² of a border is generally the first
practical detention point after a border crossing or the final port of
entry. It is justified because in essence, it is no different than a
search conducted at the border and occurs only because of the
impossibility of requiring the subject searched to stop at the physical
border.

The second concept is "extended border," which the CRS defines thusly:

Under the ³extended border search² doctrine, government officials
may conduct a warrantless search beyond the border or its functional
equivalent if (1) the government officials have reasonable certainty or
a ³high degree of probability² that a border was crossed; (2) they also
have reasonable certainty that no change in the object of the search has
occurred between the time of the border crossing and the search; and (3)
they have ³reasonable suspicion² that criminal activity was occurring.

I'd have to do more research to know how this applies in practice, but
it strikes me as a test that might sound good in theory but is applied
loosely in practice. (I'm sure someone on IP knows more about this.)

The I-5 "extended border" stops you're talking about are, supposedly, to
detect illegal aliens. In U.S. v. Martinez-Fuerte, the Supreme Court
said that checkpoint stops are OK because "neither the vehicle nor its
occupants are searched, and visual inspection of the vehicle is limited
to what can be seen without a search."

I can imagine circumstances in which DHS would try to extend "extended
border" searches to copying the contents of electronic devices in cars
on I-5. But I'm not sure, even given the composition of this Supreme
Court, that DHS would be allowed to get away with it for too long.

-Declan




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