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Border Searches of Laptops and Other Electronic Storage Devices
by possibly noteworthy at 6:28 am EDT, Mar 24, 2008 |
A report of the Congressional Research Service: The Fourth Amendment generally requires a warrant to support most searches and seizures conducted by the government. Federal courts have long recognized that there are many exceptions to this general presumption, one of which is the border search exception. The border search exception permits government officials, in most “routine” circumstances, to conduct searches with no suspicion of wrongdoing whatsoever. On the other hand, in some “non-routine” and particularly invasive situations, customs officials are required to have “reasonable suspicion” in order to conduct a search. Several federal courts have recently applied the border search exception to situations in which customs officials conducted searches of laptops and other electronic storage devices at the border. Though the federal courts have universally held that the border search exception applies to laptop searches conducted at the border, the degree of cause required to support the search has not been established. Though some federal appellate courts do not appear to require any degree of suspicion to justify a search, one federal district court stated categorically that all laptop searches conducted at the border require at least reasonable suspicion of wrongdoing.
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RE: Border Searches of Laptops and Other Electronic Storage Devices
by Decius at 11:09 am EDT, Mar 24, 2008 |
This is basically just a coverage of the facts as they exist so far, but I found this observation objectionable: Another consideration to take into account is the likelihood of illegal materials
being smuggled into the United States through laptops and electronic storage devices.
As stated in Ramsey, “[t]he border search exception is grounded in the recognized
right of the sovereign to control...who and what may enter the country.”56 Laptops
can present a problem to the national interest in controlling what enters the country
because the vast and compact storage capacity of laptops can be used to smuggle
illegal materials. In light of this, routine searches of laptops at the border may be
justified because of the strong government interest in preventing the dissemination
of child pornography and other forms of “obscene” material that are oftentimes
contained in laptops.57
This is a phoney rationalization. I think it is astronomically unlikely that people are intentionally sneaker netting illegal materials into the country on laptop hard drives. People looking to transfer data typically do it over the internet, and if its illegal data they'd likely encrypt it. An important bit of self examination that the legal system needs to perform here is to ask itself why its perfectly fine for the police to rifle through data if it enters the country on a hard drive, certainly without a warrant and possibly without any "reasonable suspicion" at all, but a warrant is required to look at the same data if it is transfered across the same border over the internet. One of these two conclusions must be wrong. Furthermore, at a border the police might ensist on being able to seize computers or detain people if passwords aren't offered, but certainly the police cannot demand encryption keys for overseas telecommunications! These inconsistencies lend to the conclusion that these searches are an abuse of a specific loophole in the law that only occurs in a particular context rather than a reasonable strategy that fits well into an overall approach to law enforcement and civil liberties. Certainly most if not all smuggling is occurring online, and most if not all illegal material discovered in border searches is discovered because people happen to carry a lot of personal data around with them on laptops when they travel and not because there was a primary intent to travel for and use the laptop as a vehicle to transport the data to another country for distribution to people in that country. Another justification may be to facilitate searches of laptops
owned by suspected terrorists which may contain information related to a planned
terrorist attack.
While technically correct, its possible that terrorists might do anything. If the possibility that terrorists might do something means that the 4th amendment must be completely disposed of in that context, the 4th amendment must be completely disposed of in all contexts. The fact is that it is astronomically unlikely that law enforcement will happen upon a terrorist plot at random through random searches of laptop hard drives, and searches of laptop hard drives also do not fit into a specific strategic plan to eliminate terrorism. This is another a posteriori attempt at rationalizing the abuse of a loophole. |
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RE: Border Searches of Laptops and Other Electronic Storage Devices
by dc0de at 10:25 pm EDT, Mar 25, 2008 |
Decius wrote:
This is basically just a coverage of the facts as they exist so far, but I found this observation objectionable: Another consideration to take into account is the likelihood of illegal materials
being smuggled into the United States through laptops and electronic storage devices.
As stated in Ramsey, “[t]he border search exception is grounded in the recognized
right of the sovereign to control...who and what may enter the country.”56 Laptops
can present a problem to the national interest in controlling what enters the country
because the vast and compact storage capacity of laptops can be used to smuggle
illegal materials. In light of this, routine searches of laptops at the border may be
justified because of the strong government interest in preventing the dissemination
of child pornography and other forms of “obscene” material that are oftentimes
contained in laptops.57
This is a phoney rationalization. I think it is astronomically unlikely that people are intentionally sneaker netting illegal materials into the country on laptop hard drives. People looking to transfer data typically do it over the internet, and if its illegal data they'd likely encrypt it. An important bit of self examination that the legal system needs to perform here is to ask itself why its perfectly fine for the police to rifle through data if it enters the country on a hard drive, certainly without a warrant and possibly without any "reasonable suspicion" at all, but a warrant is required to look at the same data if it is transfered across the same border over the internet. One of these two conclusions must be wrong. Furthermore, at a border the police might ensist on being able to seize computers or detain people if passwords aren't offered, but certainly the police cannot demand encryption keys for overseas telecommunications! These inconsistencies lend to the conclusion that these searches are an abuse of a specific loophole in the law that only occurs in a particular context rather than a reasonable strategy that fits well into an overall approach to law enforcement and civil liberties. Certainly most if not all smuggling is occurring online, and most if not all illegal material discovered in border searches is discovered because people happen to carry a lot of personal data around with them on laptops when they travel and not because there was a primary intent to travel for and use the laptop as a vehicle to transport the data to another country for distribution to people in that country. Another justification may be to facilitate searches of laptops
owned by suspected terrorists which may contain information related to a planned
terrorist attack.
While technically correct, its possible that terrorists might do anything. If the possibility that terrorists might do something mean... [ Read More (0.1k in body) ]
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