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Re: Peter Swire: No, You Can't Search My Laptop
From: David Farber <dave () farber net>
Date: Sun, 3 Aug 2008 06:30:52 -0700


________________________________________
From: Robert Atkinson [rca53 () columbia edu]
Sent: Sunday, August 03, 2008 9:17 AM
To: David Farber; Ip
Subject: Re: [IP] Re:   Peter Swire: No, You Can't Search My Laptop

Dave,

Doesn't this all boil down to whether a laptop search is more like searching
luggage and briefcases (for which no probable cause or even suspicion is
required for the non-warranted border search) or more like the very personal
and intrusive "body cavity" search (for which some reasonable suspicion is
required)?  Thus far, the courts seem to have regarded a laptop as simply a
high-tech briefcase.

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?)

Unless and until a statute confers some other status on laptops and other
electronic devices, laptops will fall within the existing law and precedent
which means "don't put anything on a laptop that you wouldn't put in a
briefcase."

Bob



On 8/2/08 3:22 PM, "David Farber" <dave () farber net> wrote:


________________________________________
From: Peter Swire [peter () peterswire net]
Sent: Saturday, August 02, 2008 2:41 PM
To: David Farber; ip
Subject: RE:    [IP] Peter Swire: No, You Can't Search My Laptop

Jeff Nye asked three questions following up on my laptop testimony.  Here are
some possible answers:

(1)  Would some intrepid American be willing to test this in the
spirit of John Gilmore?  It could provide a test case for the courts.

A: John Gilmore could choose his moment for testing the law, by going to the
airport when he knew that he would be asked for ID.  Given the random (or
unknown pattern) of laptop/PDA searches at the border, no one traveler can
decide to be the test case.

That said, we could imagine readers of this list, or anyone else, deciding to
challenge the law if and when a search is made.  The person doing the
challenge, though, better be ready for a bigger hassle than simply being told
he or she can't fly that day.  Instead, there may be denial of the ability to
enter the U.S. or perhaps other significant consequences.

(2)  It's easy to create a situation where a traveler doesn't know
encryption keys.  Example:  Instruct a trusted assistant to (a)
generate  keys, (b) use them to encrypt your laptop, and (c) divulge
the keys only when you contact him from your destination.  What
happens when you try to enter the United States with your laptop?

A: The way the policy exists, I think Customs and Border Patrol might take the
position that you will be denied entry into the U.S. until and unless you open
the electronic device.  Maybe, on their view, you get put in a holding pen
until the owner of the key reveals the key.

(3)  If your laptop contains evidence that you have committed some
small crime (for example, speeding), what happens if you invoke the
Fifth Amendment when asked for your keys?

A.  This question gets into the broad scope of what the laptop search policy
addressed: "For example, examinations of documents and electronic devices are
a crucial tool for detecting information concerning terrorism, narcotics
smuggling, and other national security matters; alien admissibility;
contraband including child pornography, monetary instruments, and information
in violation of copyright or trademark laws; and evidence of embargo
violations or other import or export control laws."

The policy specifically allows government action for any "unlawful activity":
"When officers determine there is probable cause of unlawful activity-based on
a review of information in documents or electronic devices encountered at the
border or on other facts and circumstances-they may seize and retain the
originals and/or copies of relevant documents or devices, as authorized by
law."

At a minimum, then, the policy allows the government to keep or copy the
device it finds probable cause of any unlawful activity at all.

My thoughts on the new laptop policy:
http://thinkprogress.org/2008/08/01/hands-off-laptops/

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


-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Saturday, August 02, 2008 12:48 PM
To: ip
Subject: Re: [IP] Peter Swire: No, You Can't Search My Laptop


________________________________________
From: Jeff Nye [jpn213 () gmail com]
Sent: Saturday, August 02, 2008 9:41 AM
To: David Farber
Subject: FIXED TYPO Re: [IP] Peter Swire: No, You Can't Search My Laptop

In his testimony, Prof. Swire writes:

"... individuals are told, in addition, that they have to provide the
government their passwords and
encryption keys in order for the government to able to read the files
in the computer. Failure to
cooperate, travelers are told, is a basis for denying entry into the
United States. "


(1)  Would some intrepid American be willing to test this in the
spirit of John Gilmore?  It could provide a test case for the courts.

(2)  It's easy to create a situation where a traveler doesn't know
encryption keys.  Example:  Instruct a trusted assistant to (a)
generate  keys, (b) use them to encrypt your laptop, and (c) divulge
the keys only when you contact him from your destination.  What
happens when you try to enter the United States with your laptop?

(3)  If your laptop contains evidence that you have committed some
small crime (for example, speeding), what happens if you invoke the
Fifth Amendment when asked for your keys?



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