Posted on 06/10/2010 5:20:00 PM PDT by driftdiver
A federal judge has ruled that border agents cannot seize a traveler's laptop, keep it locked up for months, and examine it for contraband files without a warrant half a year later.
U.S. District Judge Jeffrey White in the Northern District of California rejected the Obama administration's argument that no warrant was necessary to look through the electronic files of an American citizen who was returning home from a trip to South Korea.
"The court concludes that June search required a warrant," White ruled on June 2, referring to a search of Andrew Hanson's computer that took place a year ago. Hanson arrived San Francisco International Airport in January 2009.
The Justice Department invoked a novel argument--which White dubbed "unpersuasive"--claiming that while Hanson was able to enter the country, his laptop remained in a kind of legal limbo where the Bill of Rights did not apply. (The Fourth Amendment generally requires a warrant for searches.)
"Until merchandise has cleared customs, it may not enter the United States," assistant U.S. attorney Owen Martikan argued. "The laptop never cleared customs and was maintained in government custody until it was searched..."
(Excerpt) Read more at news.cnet.com ...
So if I lived out of a tent, I could have my portable computer wrapped up in that as I came over the border and they’d need a search warrant to get at the computer, but if I have a home and the computer is not there, they can take it to try to find something “on me?”
The Justice Department invoked a novel argument--which White dubbed "unpersuasive"--claiming that while Hanson was able to enter the country, his laptop remained in a kind of legal limbo where the Bill of Rights did not apply. (The Fourth Amendment generally requires a warrant for searches.)
Yeah... in years past, I've heard of these "novel arguments" by various authorities, too ...
One was where the authorities didn't arrest a guy, but "arrested his cash" and confiscated it. He wasn't charged, but apparently his "cash" was guilty and since "cash" doesn't have any rights, there was no problem keeping it ... LOL ...
There was another one where a guy wasn't arrested but his plane was ... another big "yuk-yuk" ...
So now it seems that the authorities have been working on this new and novel way of handling "crime" -- they don't arrest you, they just arrest your house, your cash, your plane, your car, your boat -- and let you go ... hoo-boy!
Oh, and since your house, cash, car, boat, etc ... "doesn't have rights" ... there's nothing you can do about it ... yeah... right!
This, by the way, has been going on through the last several administrations, Republicans or Democrats...
They are not arresting people for smuggling virtual banned agricultural products. They are arresting the vilest of the vile.
I really don't have a problem with these searches and seizures. They are not seizing people's laptops randomly, they are intercepting people for whom they have justifiable, reasonable suspicion of heinous crime. When you go overseas, you are leaving the protection of our Constitution, and it is no more unreasonable for them to search a laptop than it is for them to search a suitcase when you are re-entering (but have not yet re-entered) the country.
“Every single person who has been arrested as a result of these Port of Entry laptop seizures”
Really, do you happen to have a source on that. I seem to recall stories of business travelers who lost their business laptop on the whim of some customs jerk.
“I really don’t have a problem with these searches and seizures. “
I have a problem with their statements that the Constitution doesn’t apply to American citizens.
“When you go overseas, you are leaving the protection of our Constitution”
Sure, but this story is about when the person is back on American soil. Seems they already had justification for a search warrant and could easily have obtained one for the secondary searches.
It’s also about a DOJ that wants to give our enemies more rights than they want to give US citizens.
You have absolutely no clue whatsoever about what you speak and you should remain silent. Where in the world did you get the idea that the only laptops seized are for child pornography?
I happen to be quite well informed on this specific subject. Please name one person who was charged with a crime, other than child porn, whose laptop was seized when he or she was re-entering the country.
Could you point out the specific clauses of the Constitution which permits the U.S. government to violate the rights of U.S. citizens when they are outside the country?
Then have a warrant.
In hand. When you “arrest” the laptop.
Sorry, driftdiver, for mis-attributing the quote above in my prior posting.
La Lydia, which clauses of the Constitution permit the U.S. government to violate the rights of citizens when they are outside the country?
Please name one person who was charged with a crime, other than pornography, as the result of having their laptop seized. Until you have cleared customs and passport control, that is, until you have entered legally and lawfully, YOU ARE NOT YET IN THE UNITED STATES and under the protections of the Constitution. I agree with you that DOJ wants to give our enemies more rights than they want to give US citizens. However, DOJ isn't the agency in charge of ports and the border, DHS is. DOJ doesn't have anything to do with it unless and until a crime is discovered.
Wow! I did not know that!
You are in possession of knowledge that the rest of us didn't have! How about a ****ing link to support this amazing revelation. La Lydia, this place is not a complete crank's holiday.
Support your assertions.
You made the statement that all such cases involve child porn. Its up to you to substantiate that statement.
What rights would those be? When I re-enter the country, say from Spain, the government SEARCHES my luggage, requires me to have a valid passport, and forbids me from importing certain agricultural products (such as serrano hams), certain drugs, untaxed perfume, liquor and tobacco products, and pornographic materials. I really think it is a stretch to say this is a violation of my Constitutional rights, but I admit I would be ticked if they seized my Les Larmes Sacrées de Thebes de Baccarat or my Eau D’Hadrien. The only things I have ever had seized are a bag of avocados at the El Paso POE and several links of select Spanish chorizo at the Miami airport. They have never paid any attention whatsoever to my laptop. I take it you don’t travel abroad very often.
In my international travels the ONLY people that treated me badly were US Customs.
“Every single person who has been arrested as a result of these Port of Entry laptop seizures, without exception, has been charged with child pornography. I have been told that some of the child pornography involved murder.”
Let’s say your statement is true (not very likely!!!!) the single picture that was described as found on the suspect’s laptop does not sound like evidence of a “child pornographer” or one who is contributing to such. The line between healthy eroticism and pornography may be a fine one in some cases but most people admit they can tell the difference when asked and do not confuse the two just to make a case.
If the “evidence” in this case is an admissible standard for pornographic “contraband” then they should confiscate the digital images of the cover of the swimsuit issue of sports illustrated from all inbound travelers that arrive with it in their possession.
Isn’t this an issue of over-zealous bureaucrats justifying their reaction to a traveler’s not-so-abnormal nervous reaction towards their zealous attempts to find something incriminating in his possession? Having started down that road the bureaucrats HAD to produce something, some argument to make the effort appear “justifiable”.
There are many zealots in the U.S. Department of Justice, who define “justice” as simply making a prosecution, even when the honest investigation might have suggested that JUSTICE was that there really was no case. Too many believe that finding that truth does not justify their existence in the way they believe making a prosecution does.
I suggest you contact U.S. Customs and Border Protection and ask them. They aren’t all that anxious to discuss it because such publicity might have a negative impact on the efficacy of their operations. Please name one person who has been charged with a crime other than pornography, as a result of these seizures. And thanks for so graciously suggesting I’m a crank. I am always so happy to get back, rejoin this forum and be warmly welcomed.
So make the original search. Its the keeping for months and searching whenever they want that violates peoples rights.
No, if your lap top is taken, there must be a search warrant, if you lived in a tent or house.
AND THANKS FOR CALLING ME A LIAR FOR HAVING THE BAD TASTE TO EXPRESS MY OPINION. It always warms my heart to return home after months away, rejoin this forum and be insulted. Oh, and the Supreme Court has identified the kinds of pornography that may and may not be proscribed. Child porn is in the "not allowed and we will prosecute you for it" category. Sports Illustrated swimsuit edition isn't. Is that clear, or do you equate the swimsuit edition with little children being violated?
“Until you have cleared customs and passport control, that is, until you have entered legally and lawfully, YOU ARE NOT YET IN THE UNITED STATES and under the protections of the Constitution.”
This is the stupidest thing I have ever seen on FR!! YOu are saying the DOJ can torture you? Hold you indefinitely without right of Habeus Corpus? Not allow you to ever contact a lawyer or be bonded for the rest of your life? You don’t know what you are talking about!!
Not according to the way this article sounds. They can do what they want without any warrant when at the border.
Read the article.
Your body is different than your possessions, according to what is being used by the Administration to take all digital items indefinitely until something is found. Possessions are not “citizens.”
Doesn’t matter what THIS article says...If Law Enforcement wants to search your home computer, they need a search warrant.
I don't care how many time you repeat this unsourced and dubious claim, that does not change the fact that a very large number of business travelers have had their devices seized for no real reason so that customs agents can rifle through the contents, all while NOT charging that person with any crime whatsoever.
That this happens is an undeniable fact and a subject of great concern to every business with employees that travel outside of the US.
If your belongings are in the US, yes, if they are coming through Customs, then no. So if your home computer is coming back with you, it can be indefinitely taken for exploration until something of interest is found. No warrant needed.
I agree 100%. Well stated.
The rights you enjoy after you have entered legally are different from your rights before you have entered legally. For instance, once you are in the country, they need probably cause or a search warrant to go through your belongings. Or are you arguing they should have to get a search warrant before searching luggage and commercial cargo bring brought into the country from, say, Iran? Please clarify.
Please source your own dubious claim. Why would CBP be doing this? You think “Customs agents” are stealing their business secrets? Poaching their patents? How and why? What are they doing with them? Selling them to the Chinese, perhaps? Oh, wait. That’s the people who are LEAVING the country. And I wonder why they never pay any particular attention to my laptop? Again, please name for me one person who has been charged with a crime other than pornography as a result of these seizures.
You are absolutely lieing your ass off on FR using a “its fur da chilrun” argument to defend the destruction of the natural born rights and Constitutional protections that are the basis of this country.
Ban yourself now.
Or we’ll hound you until you read up on the actual case history as recorded by the EFF and ACLU.
You can’t even correctly spell simple words in what I assume is your native language, you are ignorant of the basic tenets of civil discourse, you are willing to tolerate child pornography and you think threats are an effective means of debate. And I am supposed to respect your opinion, fear your wrath and defer to the ACLU?
Yes, please get a grip on the facts. The Department of Justice IS involved, NOT when DHS has “discovered” a crime, but on DHS’s SUSPICION about a POSSIBLE crime, AND IT IS the role of the Justice Department, NOT DHS, to confirm (investigate) the suspicion, not simply “prosecute” based on the DHS suspicion.
I don’t know what you think I called you a “liar” about, other than my comment about your presenting “evidence” not evidenced in the story, as it was presented; including your latest “Try hundreds of videos” and your opening line that these cases (DHS seizing electronic equipment at border entry points) are ALWAYS about child pornography, another “fact” of yours not in evidence. Others, not I can answer the question of whether or not someone who presents facts not in evidence is a “liar”, or not.
My single point on “the evidence” is that the only evidence described in the story, with any sufficiency, is a single photo that by itself does not offer “evidence” of child pornography. Whatever other “evidence” exists in the case has not been presented in the public stories about the case, and not by you providing other sources for it.
Which leaves one to judge the issue on the one “skimpy” evidence that has been presented, which seems insubstantial.
Maybe what is also wrong with the prosecution of this case was the prosecutors - like you - did not supply the facts to make the case for the “suspicions” that caused them to keep the equipment so long after initial checks did not confirm them. But that is what over zealous prosecutors do. They mount a prosecution because they are so certain of their SUSPICIONS, and have such certainty of suspicion in greater supply than the facts. That is exactly how the innocent are prosecuted, as well as how cases like this are lost.
You really don't know how our system works, do you? Your statement is most certainly not how it works. Who do you think arrests people? Prosectors? Or law enforcement officers who investigated the crime? Who do you think provides the prosectors with evidence? Other prosecutors? Or law enforcement? Who do you think investigates crimes? The police department? Or the DA? The prosecutors decide, based on the evidence law enforcement has presented (and in some cases, evidence that emerges in depositions after the fact), whether a case can be prosecuted. You have described the way the system functions in countries with criminal justice systems based on Napoleonic law, not ours.
And do you really think either the law enforcement or the criminal justice agency is going to make public all of the evidence in a child porn case?
All that said, I don't know why they are keeping people's laptops for such extended periods of time. Could be they don't have enough qualified and trained staff personnel to go through all of it immediately.
And, when participating in a Tea Party is considered treason or sedition?
I didn’t see anything about tea parties and laptops. Did I miss something? Or are you equating tea party participation (of which I am guilty) with bringing child porn into the country? I really don’t understand. What is your point?
What happens if participating in a Tea Party is put on par with child porn in the opinion of DHS? Is it still OK to seize property?
Child porn is illegal under both state and federal statutes. Are you saying that tea parties are illegal under state and federal statutes?
Reread my initial reply to you.
That has not clarified things. To my knowledge, there is no law against tea parties. No one has come after me yet. But there are books of laws proscribing child porn.
Someone who is arrested, is a SUSPECT; not a CRIMINAL. It is the investigation, and if needed the prosecution and trial that determines that a suspect is a criminal - NOT THE ARREST.
"You really don't know how our system works do you", because YOU don't know the definition of the terms used in the system. DHS's "investigation" powers ONLY establishes "suspects". It is the Justice Department and their activities, NOT DHS, that FIND (the trial) that a suspect IS IN FACT a criminal.
If one were a "criminal" merely on the say so of whoever made the arrest, you could dispense with the Justice Department AND the Judiciary and outfits like DHS could end the whole matter with their "arrest". But, this is the USA, not Nazi Germany, Soviet Russia or Red China.
It is not the "evidence presented" by whomever makes the arrest, that makes the case, but the evidence the Justice Department believes substantiates the case (if they do) and that determination includes their own analysis of "evidence" and the "investigation" that continues after it is given to the prosecutor is done, not independently of the prosecutor but (a) in cooperation with the prosecutors office and often at their direction and to SATISFY the prosecutor. ANY prosecutor who simply takes the "arresting" authorities report, and their word, and nothing else and files the case in court, has not done their job. That's not an "investigation" from a Justice Department perspective.
"And do you really think either the law enforcement or the criminal justice agency is going to make public all of the evidence in a child porn case?"
That's not the point. The point is that that additional "evidence" is not in the public record so YOUR claims as to any particulars about it are worthless and just speculation, not "evidence".
So, OK maybe it's permissible to seize property for people who possess kiddie porn. But where does one draw the line? Is it ONLY kiddie porn? That hardly seems consistent if statutory rape isn't included. If we're going to include statutory rape, how can we exclude a violent rape and murder where the victim is tortured before being decapitated? Endangering out republic is a serious crime, too. Imagine the potential for loss of life with person or persons committing treason or sedition. Tea Party participants have been described as committing both.
Beyond all that, planting files on a laptop is relatively simple. Humans write the software that prevents it and humans can write software to programmatically get around it. It's a dangerous slippery slope that can easily remove freedoms from anyone a power-hungry government wishes to target.
Did you grow up in this country? Why do I doubt it. In this country, our COURTS, and specifically JURIES, decide whether the accused is indeed guilty and therefore a criminal. You think the Justice Department determines that? Where do you think prosectors get evidence? They get it from law enforcement. Here is how it works: law enforcement (evidence and information gathering; apprehension) —> criminal justice (decision to prosecute) —> courts of law and juries (determination of guilt). Also, I am appalled that you believe evidence in child porn cases should be made public. I supposed you want the photographs from rape prosecutions made public, as well. I disagree.
I am sorry, but you lost me. Why would someone commit statutory rape, and go to all the trouble to somehow record it on their laptop, travel overseas with that content and return with it still on their laptop? Ditto murder. Ditto violent rape and murder. And separately from the well traveled and documented statutory rapists, you think US Customs and Border Protection agents seize the laptops of random people at airports and plant files on them? Do you think they have a quota, or do they do it on their own? Because they are power-mad? Where is this happening? I guess I am just too naive and trusting.
Naive doesn’t even begin to cover it.
I may be naive, but for a “Christian,” you are awfully nasty and paranoid. What’s more, posing nekkid with a hatchet on a public forum sends a truly bizarre mixed message. Thank you for the laugh. Bottom line, I trust my judgment over yours any day of the week.
You don't actually READ what's written, or at a minimum you bypass what you chose to, when you do read.
As I said, it is the trial process, not the "arrest" process that determines who is a "criminal"; where all your early posts claimed the suspect was a "criminal" simply due to the DHS arrest. Open your ears, by reading more carefully what is written.
"Where do you think prosecutors get evidence? They get it from law enforcement. Here is how it works: law enforcement (evidence and information gathering; apprehension) —> criminal justice (decision to prosecute) —> courts of law and juries (determination of guilt)."
Your problem is that you think "investigation" and investigatory powers end with and are situated entirely in the "arresting" authority and that beyond what the arresting authority does the prosecutor (DA) sits waiting helplessly for what the arresting authority does on their own to prove the case. As I said, the prosecutors, whether local, state or federal are not helpless and they are not without their own resources when it comes to the totality of any "investigation", and in fact the arresting authority is often tasked directly by the prosecutors office for some of the additional investigative work, when THE PROSECUTOR believes it is necessary. Why? Because the prosecutor must believe that the evidence is sufficient to bring the case to trial, and will not sit idly dependent on the "arresting" authority when and if they - the prosecutor - believes the case requires more "investigation". Your idea that the prosecutor proceeds only because of and simply by the say so of the arresting authority is Stalinesque fiction.
If that were the case, we would have many more useless trials (than we already do) as prosecutors were hamstrung to deliver up for trial every case the arresting authority handed to them (whether or not the prosecutor believed in the case) and if they had no powers of their own to improve upon the investigation of the cases they did choose to proceed with. You give the prosecutors too little (or no) respect in the totality of any "investigation".
"Also, I am appalled that you believe evidence in child porn cases should be made public."
Again, more evidence that you don't read what is written. NO WHERE did I make a plea that evidence in child pornography cases all OUGHT TO BE made public. What I did do was I noted that any additional "evidence" IN THIS CASE, other than the initial photo, WAS NOT MADE PUBLIC OR EVEN SUMMARILY DESCRIBED and therefore YOUR ATTEMPTS at trying to characterize the exact nature of that evidence ("100s of videos") is your speculation and not factually reported "evidence".
That is not a request that it SHOULD BE reported, in all it's lurid detail, but simply a cautionary note that no one (YOU) should make-up their own fictional list of evidence in a case. You can assume whatever you want about it, you cannot state your assumption as if it is "evidence" ("100s of videos"), without that statement being understood as your speculation and NOT "the evidence".
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