Posted on 01/07/2008 6:56:46 AM PST by rawhide
A couple of years ago, Michael T. Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called “Kodak pictures” and “Kodak memories,” the officer found child pornography.
The search was not unusual: the government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer’s hard drive, the government says, is no different than looking through a suitcase.
One federal appeals court has agreed, and a second seems ready to follow suit.
There is one lonely voice on the other side. In 2006, Judge Dean D. Pregerson of Federal District Court in Los Angeles suppressed the evidence against Mr. Arnold.
“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”
Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and — the clincher, of course — information about reporters’ “confidential sources and story leads.”
But Judge Pregerson’s decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.
{snip}
(Excerpt) Read more at nytimes.com ...
Now we know the real motivation ferom the NYT to hand-wring over this. It isn't Civil Liberties, it their business model that they think will be affected.
Or am I missing something?
Interesting notion...storage device as extension of personal memory. That’s probably very true, for the most part. Planners, calendars, address books, the great American Novel, plans for nuclear bombs, poems to the mistress, etc.
I don’t believe the appeals courts will agree, though. Far too many activist judges eager to legislate from the bench.
Encrypted, I’d suggest. Regardless of the content.
Care to elaborate?
Correct me if I am wrong, but, is it not illegal to possess this material in any form?
I’m not up on all the latest child porn handle dos and donts, but I would be more paranoid of sending it around public internet lines and e-mail servers, then holding it on a hard or thumb drive. In two weeks you could delete the info, but once its in a mail server it exists forever, with your name attached.
Merely that with no file in the computer in question, (other than a forensic search) how would some airport security person see the file?
Deleted files are still on your computer.
Is it illegal to have a folder of information that has your credit card numbers, social security numbers, account passwords for online stores, etc.?
What the federal courts have said is that anyone who is under the government umbrella has the authority to look at your private computer files without a warrant or suspicion.
Just because something good (catching a peddler in child porn) happened because of a bad and dangerous law, doesn’t mean it isn’t a bad and dangerous law.
See my post #9?
My laptop IS my home PC. It's the only computer I have.
I disagree with Judge Pregerson strongly.
A memory of pornographic material can be desired or undesired. For example, a victim of child porn may have the memory, but doesn’t want to have it. Or someone could have accidentally viewed it and was subsequently repulsed.
Keeping pornographic material on a hard drive demonstrates a desire to view it repeatedly. IOW, its being used to reinforce a memory. Its not the memory itself.
That helps. Thanks
Not necessarily, but if this guy's dumb enough to leave kiddie porn essentially in plain view, he's not smart enough to use the software that will permanently delete the files (unless somebody REALLY wants your data and is willing to splurge for an electron microscope).
Anyway, I can't figure out what the judge is smoking. Warrantless inspections at point of entry were allowed by the Founders, so they're certainly not unconstitutional now. If you have any confidential information, there are a myriad of ways to hide it from the cursory customs inspection.
That is the main point, do we are do we not have a 4th amendment.
Put everything personal on flash drives and carry them in your wallet.
Pregerson's the activist here who is trying to create new law, not the appellate judges.
Sending something through email (unless encrypted) allows anyone who has access to the email server access to that information. Further, simply deleting the folder does not remove the data and it can easily be recovered.
However, that task is normally well beyond the skill of your border agent.
1) Don't leave the country
2) Create a folder on the desktop labeled "Nasty Pictures" and put the following image in it.
That should end the search.
Unless I’m confused, couldn’t personal files be openable only with a password or encrypted? I suspect they’d have to get a court order to crack a file with a password. In any case, the Border guys aren’t likely to have the equipment or expertise laying around to use at random.
How would that help? If they can look at a hard drive, they can certainly look at a flash drive.
If a hard drive is an extension of our own memory then it could not be used as evidence. We can not be made to testify against our selves.
Reference to message #3 suggesting emailing the data to another PC, then deleting the file/directory from the laptop/notebook PC.
I was suggesting that, in this day and age, well encrypted (and compressed) files should be the norm for email transport, regardless of content. You have no way of knowing what may be interesting or important to someone else if they should get the chance to read/review your data.
One thing I didn’t mention, is the suggested use of an efficient, thorough file deletion tool, one with milspec credentials, to remove the data from the source device, and for the same reason. “DELETE” is not ‘delete’ as most people think of it...
The concept here is essentially saying that because of the format of storage there is no expectation of privace.
Does this mean your lawyer’s laptop with your personal information can be copied and thus avoid the warrent or even breach attorney client?
What about medical records?
Forget warrents just wait for someone to cross the border.
lets extend it to an absurd length. If you laptop has gone with you on an international trip does this mean that MERE fact can be used to skip a warrent at you house?
seems you don’t “just” look at a persons laptop. There HAS to be more here.
Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
Tech Ping...
No, that is not what the courts have said. The courts have said that if you are entering the country via an airport, your computer is no different from any other piece of luggage and the security inspectors are allowed to inspect it. Nothing at all in the ruling would extend this same authority to "anyone under the government umbrella" nor to any circumstance other than when the PC is part of the luggage going through airport security. Without a little more information, I don't know that I agree with the decision, but I certainly disagree with a complete misrepresentation of what the decision represents.
Any item or container entering the country should be available for inspection. Its a matter of customs. They can inspect your fruit, your suitcases, your hair or they can make you strip if they like. Why the hell should a laptop be an exception to the rule.
ping....agreed.
I don’t think probable cause limits exist during entry into the country. I also don’t think it matters if it is on a computer or printed out and in your briefcase. Customs can look at anything.
Whether it is kiddy porn or drugs or contraband ham sandwiches, if you try to bring it through customs, you shouldn’t be surprised if you have problems.
It doesn’t really go away when you delete it
Thanks for that info PubliusMM.
That makes no sense.
Does this mean attorney files are now subject to warentless searches when passing the border?
Paper diaries?
We are not talking about physical content. We are talking about INTELECTUAL content.
Why not just order every hard drive that passes the border must be cloned.
there is a difference for citizens and noncitizens.
I use a freeware program called “Truecrypt” for my business files, tax records etc. It’s supposedly uncrackable. In fact, back in the 90’s the Clinton administration tried to get congress to pass a law banning it and all other encryption without a “backdoor” for law enforcement.
Sure they can... with a warrent. But establishing that it is a book, and books are not an item that can cause detention, is not probable cause for reading it.
Likewise, they can have you turn on your laptop and even do a physical search of the laptop. But once they establish that it is a laptop, they do not have the right to search the contents of the laptop.
If they suspect that you have materials on your laptop that might be illegal, then they can get a warrent. Or if there is reasonable suspicion at the time of illegal transport, they can search it.
But since a laptop in and of itself is not probable cause, I think this decision was wrongly decided.
This is a matter of an item entering the country from a foreign destination. This has nothing to do with TSA. This is a US Customs issue. So your point is not relevant. Sorry.
This was not domestic travel.
Following your logic, you are placing limits on the right of the US to defend itself from foreign spies or terrorists.
Bump.
It is also crucial to use an encrypted file system on laptops since they are a juicy target for thieves. That way the thieves get nothing but the hardware.
It’s a fourth amendment thing. Something about being secure in your person and in your papers.
Pretty clear violation of 4A, but the judicial is doing its usual level worst.
Anymore, when they actually get one right it seems like a complete surprise.
The point is that you shouldn’t have to do what you are talking about. If they have probable cause to search your computer, then they ought to be able to get a warrant for that search.
The ONLY reason why they ought to be searching your laptop is for bombs, or for those devices that trigger bombs.
Corporations have the right to search people’s devices coming into and out of the workplace.
In a world where the Constitution had any meaning, this wouldn’t have won at the appellate level. I’m not even sure it would have qualified.
***Encrypted, I’d suggest. Regardless of the content.***
Exactly. A good program to protect your intellectual property from theft. Let a judge give the order instead of letting anyone conduct a search and seziure.
Get a warrant before doing searches and there’s no problem. Search without warrant? Problem.
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