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Re: READ DHS responds on laptop searches; direct action campaigns
From: David Farber <dave () farber net>
Date: Wed, 6 Aug 2008 14:52:27 -0700


________________________________________
From: David P. Reed [dpreed () reed com]
Sent: Wednesday, August 06, 2008 3:28 PM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:  DHS responds on laptop searches; direct action campaigns

Suggesting one answer to Rob Atkinson: So here's one reason why it may
matter: mission creep in the various agencies as they see their goal as
information collection, not for one purpose, but for any purpose to
which it can be put.

For example: I recently attended a meeting at MIT where the FBI and ICE
(border patrol) gave presentations focused on their interest in getting
university faculty and staff at places like MIT to help them with their
various jobs focused on immigration, export control of sensitive
technologies, etc.  (getting involved in stuff like Infraguard, etc.)

The part I found worrisome:  One of the keynote speakers stated that
after 9/11 there were new priorities given to the "intelligence"
functions of various agencies including FBI and ICE. Anti-terrorism was
one (obvious), but in the top 5 revised priorities was a phrase that
said, approximately (I would have taken a photo to copy the slide, but
with all the Feds in the room, my actions might have been misconstrued),
"protecting US economic interests from foreign threats".  I found this
priority oddly placed, and difficult to parse (is a multinational like
IBM or Carlyle Group with non-US investors and creditors but chartered
in the US something they are supposed to protect? Or is it a "foreign
threat"?  Not so clear)

So if a laptop contains company proprietary information being carried
across the border something that fits within the scope of such
intelligence gathering activities?  If data of value to such a US
company is being carried in a foreigner's laptop, can it be shared for
national-interest reasons with the US company?  (of course, by symmetry,
China would have a right to copy and give to its companies any data
being carried by US visitors that might be of use to companies chartered
there.)  If an individual MIT inventor carries plans for an interesting
invention to negotiate with Samsung an exclusive trade secret license,
is it ICE's job to copy and to share that data with Intel because
Samsung's semiconductor business competes with Intel?

What recourse does one have when standing there in the border to stop
one's personal assets from being seized and devalued by government
appropriation/theft?

One might wonder whether those who handle the data extracted from
laptops are actually Federal agents, or just contractors in the private
sector, who might work for companies who would be tempted to extract
information for purposes other than strict national security reasons
(e.g. Booz-Allen, GE security, any of the Carlyle-owned companies).  How
well are the employees who handle such information vetted and
supervised?  The CIA has trouble even finding Aldrich Ames, and he was
career Fed.

It seems to me that the risks of collecting and storing lots of data for
no serious purpose INVITES serious problems.




David Farber wrote:
________________________________________
From: Robert Atkinson [rca53 () columbia edu]
Sent: Wednesday, August 06, 2008 1:53 PM
To: peter () peterswire net
Cc: David Farber
Subject: Re: [IP] DHS responds on laptop searches; direct action campaigns

Peter,


Their basic point remains the same ­ customs has checked people¹s 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?)


The only response I've seen was:


Your skull is a body cavity. And what is a laptop but overflow
storage (sort of a storage locker) for your skull when it gets
full?


Is that the best IPers can do?

Of course, if Customs can search the data on a laptop or other physical
media at the border without a warrant, why can't it search the same data as
it flows on telecom networks at the same borders without a warrant? If the
owner of the data is intentionally trying to evade the border search of the
laptop by using the internet to "sneak" the data around the border--as
suggested by a number of IP commenters--could Customs intercept the data at
the border without a warrant, regardless of FISA?

Bob Atkinson


On 8/6/08 12:00 PM, "David Farber" <dave () farber net> wrote:


________________________________________
From: Peter Swire [peter () peterswire net]
Sent: Wednesday, August 06, 2008 11:57 AM
To: David Farber
Subject: DHS responds on laptop searches; direct action campaigns

Dave:

Public concern about laptop searches seems to be getting the attention of
senior officials at DHS.

Yesterday, they posted ³Answering Questions about Laptop Searches² by Jayson
Ahern, Deputy Commissioner, U.S. Customs and Border Protection:
http://www.dhs.gov/journal/leadership/

It links to his June 30 post on ³CBP Laptop Searches²:
http://www.dhs.gov/journal/leadership/2008/06/cbp-laptop-searches.html.
Readers may wish to add their comments to the blog post.

Their basic point remains the same ­ customs has checked people¹s items at the
border for 200 years, so they can check your laptop.

Meanwhile, this issue has hit the front page of DailyKos,
http://www.dailykos.com/storyonly/2008/8/4/141837/1015, and Dave Farber¹s list
gets mentioned in the Salon article,
http://machinist.salon.com/blog/2008/08/04/encryption/index.html.

Two direct action campaigns are underway:

(1) ³Hands Off My Laptop,² from Center for American Progress Action Fund:
http://www2.americanprogress.org/t/288/campaign.jsp?campaign_KEY=6239

(2) Electronic Frontier Foundation action site:
https://secure.eff.org/site/Advocacy?alertId=373&pg=makeACall.

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



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