Posted on 08/01/2008 12:07:42 PM PDT by southlake_hoosier
The U.S. Department of Homeland Security has concocted a remarkable new policy: It reserves the right to seize for an indefinite period of time laptops taken across the border.
A pair of DHS policies from last month say that customs agents can routinely--as a matter of course--seize, make copies of, and "analyze the information transported by any individual attempting to enter, re-enter, depart, pass through, or reside in the United States." (See policy No. 1 and No. 2.)
DHS claims the border search of electronic information is useful to detect terrorists, drug smugglers, and people violating "copyright or trademark laws." (Readers: Are you sure your iPod and laptop have absolutely no illicitly downloaded songs? You might be guilty of a felony.)
This is a disturbing new policy, and should convince anyone taking a laptop across a border to use encryption to thwart DHS snoops. Encrypt your laptop, with full disk encryption if possible, and power it down before you go through customs.
Here's a guide to customs-proofing your laptop that we published in March.
It's true that any reasonable person would probably agree that Customs agents should be able to inspect travelers' bags for contraband. But seizing a laptop and copying its hard drive is uniquely invasive--and should only be done if there's a good reason.
Sen. Russell Feingold, a Wisconsin Democrat, called the DHS policies "truly alarming" and told the Washington Post that he plans to introduce a bill that would require reasonable suspicion for border searches.
But unless Congress changes the law, DHS may be able to get away with its new rules. A U.S. federal appeals court has ruled that an in-depth analysis of a laptop's hard drive using the EnCase forensics software "was permissible without probable cause or a warrant under the border search doctrine."
At a Senate hearing in June, Larry Cunningham, a New York prosecutor who is now a law professor, defended laptop searches--but not necessarily seizures--as perfectly permissible. Preventing customs agents from searching laptops "would open a vulnerability in our border by providing criminals and terrorists with a means to smuggle child pornography or other dangerous and illegal computer files into the country," Cunningham said.
The new DHS policies say that customs agents can, "absent individualized suspicion," seize electronic gear: "Documents and electronic media, or copies thereof, may be detained for further review, either on-site at the place of detention or at an off-site location, including a location associated with a demand for assistance from an outside agency or entity."
Outside entity presumably refers to government contractors, the FBI, and National Security Agency, which can also be asked to provide "decryption assistance." Seized information will supposedly be destroyed unless customs claims there's a good reason to keep it.
An electronic device is defined as "any device capable of storing information in digital or analog form" including hard drives, compact discs, DVDs, flash drives, portable music players, cell phones, pagers, beepers, and videotapes.
“I think I’d rather lose my computer for awhile than have a bunch of innocent Americans killed in a terrorist attack.”
If we lived in a police state it would be easier to combat most kinds of crime.
“but, but, but... it’s not fascism if it happens under a Republican administration!
“
If Hilary Clinton or Hussein Osama proposed this then some of the same people would be freaking out.
Meanwhile, the 5000 lb container bomb is dropped ashore and transferred to a truck without so much as a glance.
Anyone who thinks security is the concern here is deluded beyond salvation.
I don’t disagree with you at all. It is so stupid to let so much cargo in without being checked. It’’s never about real security. It’s always some justification for the government to have more control.
Well spoken, you are certainly one of the sheeple.
They need to get a warrant and demonstrate probable cause. The constitution can be a biatch sometimes can't it.
Yes, though of course they normally don't in the case of luggage and personal items. It's maybe a little bit different in the case of electronic data, since it can be copied and returned to the person. In this policy they're saying that they destroy any copies made as soon as they don't need it for something (like as evidence) anymore.
The founders could never envision a day where criminals might have access to fully-automatic machine encryption. Clearly this amendment just applies to houses and papers that existed back when the Constitution was ratified.
Besides, the operative clause is "no Warrants shall issue", which means a warrant isn't needed.
Since they've treated the 2nd amendment this way for over half a century, what makes anyone think they'll have any problem treating the other amendments the same way?
If they want to snoop, make it hurt. Fill the laptop up with weird sounding file/doc names and dump the foulest shock imagery the world has ever seen into it. Make sure everyone who actually looks at it doesn’t sleep for the next 10 years.
::::::::::::
Think of them showing that to a jury because you had an unlicenced song on there.
No... wrong.
He is at risk if the government can PROVE HE ISN’T the owner...
If you’re an American citizen, you still have the right to be PROVED guilty.
This crap needs to stop.
Your fingers will be cold and dead if you try to deny a DHS goon the right to take your laptop from you when they demand it.
I hope you are being sarcastic or that English is not your first language, but of course with public schools what they are ...?
...no Warrants shall issue , but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.Means that...
In other words who's laptop, which one if they own several, and where it is to be seized.
The founders envisioned a day of tyranny when the scope of government would not be constrained, where rights give way to power, and where taxes exceeded 10 percent.
The founders would be ashamed of what has been to their plan of liberty.
.
“The founders would be ashamed of what has been to their plan of liberty.”
Amen to that, Brother. Shout it from the rooftops!
It's usually a good idea to read the fine print.
A warrant is required
< sarcasm > Says you. That "but upon probable cause" is after a comma. They could've meant that you must have probable cause before an Oath is needed to support the warrant. With all those commas in there, it just isn't possible to understand what they could've meant, so clearly the amendment is just an anachronism from an earlier time. Besides, they were probably talking about making sure government papers were secure, and we have the Army and National Guard to protect government papers these days. < /sarcasm>
Is that better?
If one understands the problem then one understands the remedies - encryption technology used to be prohibited from export - (that is, “codes” and other methods of using unique keys or algorithms that allow for secure communications) - get this - under “munitions”. That’s right, the federal government considered these things as dangerous as explosives. And, they’re probably right. Hell, you know they’re right. But what good is scanning everybodys’ hard-drive gonna do?
What the government needs to do is streamline, lose the buearacracy and learn to delegate fine distinctions and common sense to the folks charged with these jobs. That means hiring good people who are competent and prescient, etc.
ML/NJ
No. It's not true. In fact, as I suggest above, reasonable people should be opposed to such inspection.
ML/NJ
You got it!
That was back when the Government operated somewhat according to the Constitution.
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