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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 17:02:32 -0700


________________________________________
From: Mike Godwin [mnemonic () well com]
Sent: Sunday, August 03, 2008 3:24 PM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:     Peter Swire: No, You Can't Search My Laptop

Dave,

I think the argument has to be something like this:  in an age of fast
laptops and cheap hard-drive space, it's increasingly routine for
people to keep entire records of their personal affairs on computers
they carry with them in international travel, especially if they are
frequent travellers. Because of this, a warrantless search of a laptop
amounts to a warrantless search of people's entire lives. Such
searches have not historically been required of people crossing U.S.
borders, not even after the September 11 events.

It's true that the jurisprudence of border searches has been pretty
much a jurisprudence of requiring no grounds at all for a search. But
that jurisprudence is built on an understanding of border searches as
based on either security concerns or the detection of physical
contraband. Laptop searches don't uncover physical contraband, and it
is impossible to determine from inspection whether copyrighted content
is licensed or unlicensed to the carrier.

Compelled disclosure of encryption keys is something that should be
nipped in the bud whenever it appears.

Properly, customs officials should be grateful for laws limiting
inspection of computers' hard drives -- it is a chore even with
today's tools to inspect 500 gigs of anybody's stuff.


--Mike



On Aug 3, 2008, at 6:30 AM, David Farber wrote:


________________________________________
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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