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Re: Searching a laptop not same as searching a backpack and a test of a new way of sending on IP
From: "Stewart Baker" <stewart.baker () gmail com>
Date: Sun, 17 Aug 2008 12:44:40 -0400

In my view, Peter's points aren't particularly persuasive:

1.  When customs authorities search books and papers at the border,
they can and do make copies, which last every bit as long as
electronic records from laptops (longer, if my experience with hard
drive failure is anything to go by).
2. If you drive your travel trailer across the border with Canada,
authorities on both sides of the border can search it thoroughly, even
if it really is your only home, and without probable cause.  So even
literal homes can be searched, not just the figurative home that Peter
invents. (Also, really, how is a laptop more like a home than a
trunkful of diaries, scrapbooks, photo albums, and financial and
medical records being brought home after a few years?)
3.  Last time I looked, lawyers were among the most paperbound of
professions, and they bring those papers across the border every day.
Do they get a pass to bring anything they want into the country in
their briefcases just because client information might be in there
too?

Stewart Baker

On Thu, Aug 7, 2008 at 7:53 PM, David Farber <dave () farber net> wrote:

________________________________________
From: Peter Swire [peter () peterswire net]
Sent: Thursday, August 07, 2008 7:44 PM
To: David Farber
Subject: [IP] Searching a laptop not same as searching a backpack

Dave:

Here are some responses to Rob Atkinson's question about why searching a laptop is different from traditional border searches:

"Note To DHS: Searching A Laptop Is Not The Same As Searching A Backpack" -- http://thinkprogress.org/2008/08/07/dhs-laptop-response/

1. Laptop searches last far longer. The backpack search is complete when the traveler leaves the border. For a typical laptop, the government can make a copy and then search every file at its leisure.

2. It's like searching your home. Our laptops contain family photos, medical records, finances, personal diaries, and all the other detailed records of our most personal lives. Having the government rummage through all these files is like searching your home, and that requires a probable cause warrant.

3. Confidential and privileged information. Many kinds of confidential information are in laptops, including journalists' notes about an investigative story, trade secrets and other key business information, and many more. Lawyers' laptops contain attorney-client privileged information, as reinforced by a recent case that says the privilege is lost once the government sees a file during a search.

The post encourages readers to post additional differences at the Homeland Security thread on this topic: http://www.dhs.gov/journal/leadership/2008/08/answering-questions-on-border-laptop.html

      Peter



Prof. Peter P. Swire
C. William O'Neil Professor of Law
 Moritz College of Law
 The Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net

==============================
Their basic point remains the same customs has checked peopleĀ¹s items at the
border for 200 years, so they can check your laptop.

It's not a bad point and Jayson Ahern's explanation sounds pretty
reasonable. Is there a decent rebuttal? Does anyone believe that Customs
shouldn't search briefcases and luggage?

In response to your first post that started the earlier string on the topic,
Dave posted my comment which said, in part,:

So, for those IPers who are aghast at the current situation, what is the best argument for distinguishing a laptop from a briefcase or luggage and the best argument that a laptop is so "personal" that a search of a laptop is similar to a body cavity search? (And is there is valid difference between a "business"
laptop (more like a briefcase?) and a "personal" laptop
(more like a body cavity?) and how would Customs be able to distinguish between
them without looking inside?)



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