Peter Swire: No, You Can't Search My Laptop

[David Farber <dave () farber net>]

________________________________________
From: Richard Forno [rforno () infowarrior org]
Sent: Friday, August 01, 2008 9:25 PM
Cc: David Farber
Subject: Peter Swire: No, You Can't Search My Laptop

http://www.americanprogress.org/issues/2008/06/laptop_testimony.html


No, You Can't Search My Laptop
Testimony to the Senate Judiciary Subcommittee on the Constitution

By Peter Swire | June 25, 2008

Peter Swire is a Senior Fellow at the Center for American Progress
Action Fund and a professor at the Moritz College of Law the Ohio
State University.

In recent months I have become increasingly aware of what I consider a
deeply flawed policy. The U.S. Customs and Border Patrol now takes the
position that it can seize and copy the contents of a laptop or other
computing device for a traveler entering the United States, based
simply on its authority to do traditional border searches.

The government seems to believe that, if they can open a suitcase at
the border, then they can open a laptop as well. This simplistic legal
theory ignores the massive factual differences between a quick glance
into a suitcase and the ability to copy a lifetime of files from
someone’s laptop, and then examine those files at the government’s
leisure.

This issue has come into sharp focus since the April decision of the
Ninth Circuit Court of Appeals in U.S. v. Arnold. That panel clearly
ruled that CPB can seize a laptop computer at the border, and examine
its contents, without any reasonable suspicion of unlawful activity.
Affidavits in that case and other credible reports show that agents at
the border are going further—they are requiring travelers to reveal
their passwords or encryption keys so that government agents can
examine the full content of the laptop or other computing device.

Other witnesses today will go into depth about crucial objections to
these laptop border searches, including constitutional prohibitions
under the First and Fourth Amendments, ethnic profiling, and severe
impact on commercial and individual travelers who are forced to reveal
confidential records to the government.

My focus is different, drawing on my personal involvement in the
encryption policy battles from a decade ago. My thesis is that laptop
border searches bear a striking similarity to the federal encryption
policy that was attempted during the 1990s but reversed in 1999. My
testimony presents a brief history of these “crypto wars,” as they
were called. In particular, the testimony describes the so-called
“Clipper Chip,” where the government hoped to gain the encryption keys
in advance for telecommunications devices. The testimony then examines
eight precise analogies between the failed encryption policy of the
1990s and laptop border searches. For each of the eight critiques, the
testimony explains how the critique applied to encryption policy and
how the same argument applies to today’s border searches:

1. Traditional legal arguments apply badly to new facts about computing

2. Government forces disclosure of encryption keys

3. Severe violation of computer security best practices

4. U.S. policy creates bad precedents that totalitarian and other
regimes will follow

5. Severe harm to personal privacy, free speech, and business secrets

6. Disadvantaging the U.S. economy

7. Political coalition of civil liberties groups and business

8. Technical futility of U.S. policy

Since I became aware of the issue of laptop border searches I have
spoken to an array of businesspeople, computer security experts, civil
liberties advocates, and ordinary people who hear what the government
is doing. The reaction has been uniform: “The government is doing
that? They are just stopping people at the border, opening people’s
laptops and making copies of what’s inside? It could happen to anyone,
even if they’ve done nothing wrong? That is simply not right.”

I hope today’s hearing will be an important step toward curbing the
current practices.

Read the full testimony (pdf)
http://www.americanprogress.org/issues/2008/06/pdf/swire_laptop_testimony.pdf

Peter Swire is a Senior Fellow at the Center for American Progress
Action Fund and a professor at the Moritz College of Law the Ohio
State University.


-------------------------------------------
Archives: https://www.listbox.com/member/archive/247/=now
RSS Feed: https://www.listbox.com/member/archive/rss/247/
Powered by Listbox: http://www.listbox.com