Good Read FBI avoids warrant by having TSA search computer at airport

[David Farber <dave () farber net>]

Begin forwarded message:

From: Tom Cross <tom () memestreams net>
Date: April 19, 2010 10:47:10 AM EDT
To: dave () farber net
Cc: "ip" <ip () v2 listbox com>
Subject: Re: [IP] FBI avoids warrant by having TSA search computer at airport

Mr. Farber,

        Echoing the comment from Brock Meeks that you just sent out - the person who picked the title of this editorial 
named the wrong federal agency. Border searches of electronics are not performed by TSA (the airport security 
organization), they are performed by CBP (Customs and Border Protection) and ICE (Immigration and Customs Enforcement). 
TSA officers screen your belongings before you get on a flight (even domestic). CBP officers interview you when you 
return to the United States from another country.
        Regardless, the courts do seem to be moving toward a consensus that the Constitution does not protect laptops 
from random, suspicionless seizure and forensic examination at the border. The 9th circuit ruling referred to in this 
Washington Times article is US v Arnold, which has been discussed on IP before. That ruling has been criticized even by 
people who agree with its conclusions [1]. In particular, the court relied on a precedent (California v. Carney) 
related to the procedural requirement for a warrant to search a mobile home in order to reach a conclusion about the 
standard of suspicion required to search a laptop at the border. The two concepts are technically distinct - the police 
do not need a warrant to search the content of an automobile but they still need to establish probable cause.
        I think this consensus is being accepted so easily in part because of a desire to reach a favored policy result 
- that there be no standard of suspicion that must be reached before customs can search and seize electronics. This 
policy result is:
(A) Operationally unnecessary. CBP only searches a handful of laptops in practice [2] and DHS Secretary Michael 
Chertoff has told Wired that laptop searches are only performed when there is "some suspicion." [3] 
(B) In directly contradiction to our policies regarding the privacy of the same information when transmitted over the 
border through a telecommunications service. [4] 
(C) Unquestionably subject to abuse. (Take, for example, the case of Peter Watts, a Canadian science fiction author 
whose laptop was seized and inspected over several days after he got into an argument with customs officers. The matter 
is rather haphazardly documented. I'll suggest [5] as evidence that the laptop was seized and [6] for the big picture.) 
 
        Its my perception that there is a belief that in some cases secret information garnered by intelligence 
agencies may be used to form a basis of suspicion for a border search of a laptop and the powers that be want to avoid 
a legal requirement that they disclose that basis in open court. Be that as it may, I think the Watts case clearly 
demonstrates that a reasonable balance between our security interests and our privacy interests has not been reached in 
practice and that new DHS regulations constraining laptop searches are necessary at a minimum. That isn't going to 
happen if people don't keep talking about this issue in the editorial pages. 

Thanks,
Tom Cross

[1] http://volokh.com/posts/1208829306.shtml  
[2] http://www.computerworld.com/s/article/9138513/Laptop_searches_at_airports_infrequent_DHS_privacy_report_says_
[3] http://www.wired.com/threatlevel/2008/08/chertoff/
[4] (See sections 703 and 704 of the FISA Amendments Act of 2008.)
[5] http://www.rifters.com/crawl/?p=968
[6] http://blog.simplejustice.us/2010/03/23/cory-doctorow-learns-the-meaning-of-why.aspx?ref=rss

On Apr 18, 2010, at 8:41 PM, Dave Farber wrote:

> Begin forwarded message:
>
> > From: Labmanager <labmanager () gmail com>
> > Date: April 18, 2010 6:30:05 PM EDT
> > To: Dave Farber <dave () farber net>
> > Subject: FBI avoids warrant by having TSA search computer at airport
> >
> > http://www.washingtontimes.com/news/2010/apr/18/tsa-to-download-your-itunes/
> >
> > Federal security workers are now free to snoop through more than just your undergarments and luggage at the airport. 
> > Thanks to a recent series of federal court decisions, the digital belongings of international fliers are now open 
> > for inspection. This includes reading the saved e-mails on your laptop, scanning the address book on your iPhone or 
> > BlackBerry and closely scrutinizing your digital vacation snapshots.
> >
> > Unlike the more common confiscations of dangerous Evian bottles and fingernail clippers, these searches are not 
> > being done in the name of safety. The digital seizures instead are part of a disturbing trend of federal agencies 
> > using legal gimmicks to sidestep Fourth Amendment constitutional protections. This became clear in an April 8 court 
> > ruling that found admissible the evidence obtained by officials who had peeped at a passenger's laptop files at 
> > George Bush Intercontinental Airport in Houston.
> >
> > According to court documents, FBI agents had identified an individual suspected of downloading child pornography on 
> > an Internet chat room. The G-men, however, did not want to take their evidence before a judge to obtain a search 
> > warrant, as the Constitution requires. Instead, they flagged the suspect's passport and asked officials at the 
> > Department of Homeland Security to seize and search his computer at the airport - without a warrant. Three 
> > incriminating images were found during the examination, but this case is not about whether a particular person is a 
> > scumbag. It's about abusing a principle that applies to all Americans.
> >
> > U.S. District Judge Gray H. Miller found in this case that neither probable cause, justification nor warrant were 
> > required to seize and examine the suspect's laptop. Judge Miller, in accord with a 9th Circuit appellate ruling 
> > handed down two years ago, explained that "the court finds that reviewing the files of a computer does not rise to 
> > the level of invasion of the privacy and dignity of the individual to make the search non-routine."
> >
> > In other words, simply because a U.S. citizen is returning from a foreign country by airplane, the government thinks 
> > it is a "routine" matter to download sensitive business documents, personal correspondence and any other information 
> > that might be saved on a laptop or cell phone, regardless of whether there is any reason to suspect the traveler of 
> > a crime.
> >
> > The danger of this chain of reasoning is magnified by the courts' expansive definition of "border," which now 
> > includes checkpoints operating up to 100 miles from Canada or Mexico. Those traveling on the highway between Los 
> > Angeles and Phoenix, for example, may find themselves stopped by Department of Homeland Security officers who, 
> > literally, ask travelers to show their papers. Drug dogs also can be brought in to search vehicles without probable 
> > cause.
> >
> > The Fourth Amendment guarantees the right of Americans to be "secure in their persons, houses, papers and effects" 
> > from unreasonable and unwarranted government intrusion. It is obvious that this right is meant to apply equally to 
> > papers that happen to be stored in digital form on a personal hard drive. Such protections do not disappear merely 
> > because one happens to be at a real - or imaginary - border.
> >
> > Because the courts have been derelict in their duty to uphold this fundamental right, it is up to Congress to 
> > prohibit the thinly veiled attempts to create Constitution-free zones where Americans find their privacy invaded.
> Archives       





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