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Re: Peter Swire: No, You Can't Search My Laptop
From: David Farber <dave () farber net>
Date: Sat, 2 Aug 2008 12:22:08 -0700
________________________________________ From: Peter Swire [peter () peterswire net] Sent: Saturday, August 02, 2008 2:41 PM To: David Farber; ip Subject: RE: [IP] Peter Swire: No, You Can't Search My Laptop Jeff Nye asked three questions following up on my laptop testimony. Here are some possible answers: (1) Would some intrepid American be willing to test this in the spirit of John Gilmore? It could provide a test case for the courts. A: John Gilmore could choose his moment for testing the law, by going to the airport when he knew that he would be asked for ID. Given the random (or unknown pattern) of laptop/PDA searches at the border, no one traveler can decide to be the test case. That said, we could imagine readers of this list, or anyone else, deciding to challenge the law if and when a search is made. The person doing the challenge, though, better be ready for a bigger hassle than simply being told he or she can't fly that day. Instead, there may be denial of the ability to enter the U.S. or perhaps other significant consequences. (2) It's easy to create a situation where a traveler doesn't know encryption keys. Example: Instruct a trusted assistant to (a) generate keys, (b) use them to encrypt your laptop, and (c) divulge the keys only when you contact him from your destination. What happens when you try to enter the United States with your laptop? A: The way the policy exists, I think Customs and Border Patrol might take the position that you will be denied entry into the U.S. until and unless you open the electronic device. Maybe, on their view, you get put in a holding pen until the owner of the key reveals the key. (3) If your laptop contains evidence that you have committed some small crime (for example, speeding), what happens if you invoke the Fifth Amendment when asked for your keys? A. This question gets into the broad scope of what the laptop search policy addressed: "For example, examinations of documents and electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws." The policy specifically allows government action for any "unlawful activity": "When officers determine there is probable cause of unlawful activity-based on a review of information in documents or electronic devices encountered at the border or on other facts and circumstances-they may seize and retain the originals and/or copies of relevant documents or devices, as authorized by law." At a minimum, then, the policy allows the government to keep or copy the device it finds probable cause of any unlawful activity at all. My thoughts on the new laptop policy: http://thinkprogress.org/2008/08/01/hands-off-laptops/ 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 -----Original Message----- From: David Farber [mailto:dave () farber net] Sent: Saturday, August 02, 2008 12:48 PM To: ip Subject: Re: [IP] Peter Swire: No, You Can't Search My Laptop ________________________________________ From: Jeff Nye [jpn213 () gmail com] Sent: Saturday, August 02, 2008 9:41 AM To: David Farber Subject: FIXED TYPO Re: [IP] Peter Swire: No, You Can't Search My Laptop In his testimony, Prof. Swire writes: "... individuals are told, in addition, that they have to provide the government their passwords and encryption keys in order for the government to able to read the files in the computer. Failure to cooperate, travelers are told, is a basis for denying entry into the United States. " (1) Would some intrepid American be willing to test this in the spirit of John Gilmore? It could provide a test case for the courts. (2) It's easy to create a situation where a traveler doesn't know encryption keys. Example: Instruct a trusted assistant to (a) generate keys, (b) use them to encrypt your laptop, and (c) divulge the keys only when you contact him from your destination. What happens when you try to enter the United States with your laptop? (3) If your laptop contains evidence that you have committed some small crime (for example, speeding), what happens if you invoke the Fifth Amendment when asked for your keys? ------------------------------------------- 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 ------------------------------------------- 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
Current thread:
- Peter Swire: No, You Can't Search My Laptop David Farber (Aug 02)
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- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 02)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 02)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 02)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 03)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 03)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 03)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 04)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 04)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 04)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 04)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 06)
- Re: Peter Swire: No, You Can't Search My Laptop David Farber (Aug 07)