Janet Napolitano:

Today [27 August 2009] I announced new directives to enhance and clarify oversight for searches of computers and other electronic media at US ports of entry -- a critical step designed to bolster the Department's efforts to combat transnational crime and terrorism while protecting privacy and civil liberties.

The directives, available at DHS.gov, will enhance transparency, accountability and oversight of electronic media searches at U.S. ports of entry and includes new administrative procedures designed to reflect broad considerations of civil liberties and privacy protections -- measures designed to ensure that officers and agents understand their responsibilities to protect individual private information and that individuals understand their rights.

From the 10-page CBP Border Search of Electronic Devices Containing Information:

In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law.

Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect that information from unauthorized disclosure.

If after reviewing the information ... there is not probable cause to seize it, any copies of the information must be destroyed, and any electronic device must be returned.

Without probable cause to seize an electronic device or a copy of information contained therein, CBP may retain only information relating to immigration, customs, and other enforcement matters if such retention is consistent with the privacy and data protection standards of the system of records in which such information is retained.

DHS Secretary Napolitano Announces New Directives on Border Searches of Electronic Media

The decision came from Sotomayor's Second Circuit Court last May, regarding Lewis Mills High School student Avery Doninger. While running for Senior Class Secretary, Ms. Doninger found reason to object to the school's cancellation of a "jamfest" event, and characterized those who scotched the event as "douchebags" on her off-campus LiveJournal blog (she also characterized a school official in that same blog posting as getting "pissed off"). The school officials, in turn, took umbrage, prohibited Avery from running for Class Secretary, and disregarded the plurality of votes she received, anyway, as a write-in candidate. Avery sued the school officials, and the Federal District Court supported the school. Avery appealed to Sotomayor's Second Circuit Court.

After acknowledging the Supreme Court's 1969 Tinker decision, which held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Sotomayor's Court proceeded to affirm the District Court's ruling - that is, Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students "shared values," which include not only the importance of free expression but a "proper respect for authority".

"Proper respect for authority" ... is this what our democratic society and freedom is based upon? Last time I checked, I thought our democracy and freedom were predicated on the principle that all people have a right to express their opinions, which must certainly include disrespect for authority, if actions by the authority - such as canceling a school event such as "jamfest" - are at issue.

I think Sotomayor has lost my support...

Sotomayor's Bad 1st Amendment Decision Should Disqualify Her - Paul Levinson - Open Salon

WASHINGTON - May 6 - During a Senate Judiciary Committee hearing today on Department of Homeland Security (DHS) oversight, U.S. Senator Russ Feingold questioned DHS Secretary Janet Napolitano about the new administration's policy on customs officials searching travelers' laptops. Last year, Feingold introduced the Travelers Privacy Protection Act in response to a Department of Homeland Security policy allowing customs agents to seize laptops for an unspecified period of time to "review and analyze" their contents "absent individualized suspicion." Feingold has held off on reintroduction of the legislation in order to give the new administration a chance to address the privacy issues raised by the policy.

Feingold Presses DHS Secretary About Laptop Seizure Policy | CommonDreams.org

If a false entry in a database leads to a unconstitutional police search that reveals illegal drugs, does the government get to hold it against you?

That's the question the Supreme Court will tackle on Tuesday in a case civil liberties groups such as the Electronic Privacy Information Center argue will have broad implications in a world where we are constantly being evaluated against databases and watch lists that are riddled with frustratingly persistent errors.

"In these interlinked databases, one error can spread like a disease, infecting every system it touches and condemning the individual to whom this error refers to suffer substantial delay, harassment, and improper arrest," EPIC director Marc Rotenberg argued in a friend of the court brief (.pdf).

Supremes Mull Whether Bad Databases Make for Illegal Searches | Threat Level

Customs and Border Patrol agents can grab your laptop, BlackBerry, or external hard drive without needing so much as a reason, but a new bill introduced last week to Congress would at least put some limits on how border searches could be done.

"I was deeply concerned to learn about the lack of protections individuals' have when their electronic equipment is randomly seized," said Rep. Loretta Sanchez (D-CA), who introduced the bill. "With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information."

Note what her bill will not do—make searches more difficult.

This isn't what we really want, as it doesn't attempt to set any limits on searches. It does add more transparency to the process, and that is a good thing. It should be supported.

Sanchez's bill would bring more routine to the search process. The bill requires the government to draft additional rules regarding information security, the number of days a device can be retained, receipts that must be issued when devices are taken, ways to report abuses, and it requires the completion of both a privacy impact study and a civil liberties impact study. Travelers would also have the explicit right to watch as the search is conducted.

Sanchez also wants data about the searches, which would have to be turned over to Congress once per quarter. Specifically, she wants to know how many searches are being done, where they take place, and the race and nationality of those being searched.

The Department of Homeland Security actually issued search rules over the summer; while they were the first rules made public on the process, which had started to look quite ad-hoc, they still came in for criticism from groups like the Association of Corporate Travel Executives. ACTE, which doesn't like have executive laptops pinched whenever someone travels overseas, complained in early August that devices could basically be kept indefinitely, the data could be shared with foreign governments, and no data destruction procedures were spelled out.

This is unlikely to make it out of committee in any form before the end of the current congress. The situation is getting much needed attention though.

New bill would tighten rules for DHS border laptop searches

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 “Answering Questions about Laptop Searches” 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 “CBP Laptop Searches”: 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 people’s 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 Farber’s 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) “Hands Off My Laptop,” 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

Lots about laptop searches

Customs and Border Patrol at the Department of Homeland Security was just given the green light to search and seize laptops at the border, without probable cause, by the Ninth Circuit Court of Appeals. They can deny entry to anyone who refuses to give up their laptops and password. This is an affront to our progressive values of privacy and protection from unwarranted search and seizure.

This is the CAP Action Campaign Decius mentioned during his talk at the Last HOPE. You can use this form to request that Customs perform a privacy impact assessment on the practice.

I Am Progress - Hands Off My Laptop

Last week, federal, state, and local police in Tennessee, Mississippi, and Arkansas conducted a massive sweep dubbed "Operation Sudden Impact."

The operation included raids of businesses, homes, and boats; traffic roadblocks; and personal searches. They say they were looking for "terrorists." If they found any, they haven't announced it yet. They did arrest 332 people, 142 of whom they describe as "fugitives." They also issued about 1,300 traffic tickets, and according to one media account, seized "hundreds" of dollars.

...

The FBI along with hundreds of officers said they are looking for anything out of the ordinary. Agents take computers and paperwork from businesses.

"What we have found traditionally is that terrorists are involved in a number of lesser known type crimes," said Mark Luttrell, Shelby County sheriff.

There you have it. All law enforcement is anti-terrorism. The police cannot legally establish "anti-terrorism" roadblocks that essentially serve as forums for random search and seizure.

Tennessee Terrorism Sweep nets traffic violators

The Ninth Circuit has (finally) handed down United States v. Arnold; the court ruled that there is no Fourth Amendment requirement of "reasonable suspicion" to search a laptop computer at the border.

This is extremely bad.

The Volokh Conspiracy - Ninth Circuit Allows Suspicionless Computer Searches at the Border:

It's six minutes before midnight as a surveillance
society draws near within the United States.

The ACLU has created a Surveillance Society Clock similar to the Doomsday Clock.

American Civil Liberties Union : Surveillance Society Clock