Judge limits DHS laptop border searches

http://news.cnet.com/8301-13578_3-20007315-38.html ^ | June 10, 2010 | Declan McCullagh

[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..."

[driftdiver]

Interesting that the Constitution doesn't apply to Americans at the border but DOJ sure is willing to give protections to terrorists no matter where they are.

[microgood]

Last year, the department reiterated that claim, saying laptops and electronic gadgetry can still be seized and held indefinitely. There's no requirement that they be returned to their owners after even six months or a year has passed, though supervisory approval is required if they're held for more than 15 days. The complete contents of a hard drive or memory card can be perused at length for evidence of lawbreaking of any kind, even if it's underpaying taxes or not paying parking tickets.

The corrupting effect of power seems to be unlimited. You just cannot make this stuff up.

[ConservativeMind]

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?”

[Star Traveler]

You were saying ...

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...

[La Lydia]

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.

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.

[driftdiver]

“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.

[dinodino]

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?

[La Lydia]

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.

[William Tell]

driftdiver said: “When you go overseas, you are leaving the protection of our Constitution”

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?

[Robert A Cook PE]

Then have a warrant.

In hand. When you “arrest” the laptop.

[William Tell]

La Lydia said: "When you go overseas, you are leaving the protection of our Constitution, ..."

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?

[La Lydia]

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.

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.

[BfloGuy]

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.

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.

[microgood]

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.

Are you kidding? This became such an epidemic in 2008 that business fought back which sparked Congressional hearings on the matter. One survey of business travelers indicated 7 percent of them had something detained at the border, either a blackberry, laptop, etc. Many businesses mandated that noone carry business related information on their laptops because the government were copying their entire drives thereby compromising sensitive business iformation which could be sold by DHS personnel to the highest bidder.

This is what happens when you give power to incredibly stupid or evil people.

[driftdiver]

You made the statement that all such cases involve child porn. Its up to you to substantiate that statement.

[microgood]

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.

Actually my previous post should have been addressed to this point since I do not know about those arrested. But many people's laptops have been seized randomly without any suspicion as I state in my previous post, up to 7 percent of all business travelers at one time. And when searching briefcases, they are looking for bombs, and do not scan every document in the briefcase, where in the case of seized laptops, they are copying every bit on the drive.

[La Lydia]

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.

[driftdiver]

In my international travels the ONLY people that treated me badly were US Customs.

[Wuli]

“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.

[La Lydia]

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.