Interesting People mailing list archives
Re: Peter Swire: No, You Can't Search My Laptop
From: David Farber <dave () farber net>
Date: Sun, 3 Aug 2008 17:09:55 -0700
________________________________________ From: Robert Atkinson [rca53 () columbia edu] Sent: Sunday, August 03, 2008 4:33 PM To: Brett Glass; David Farber; Ip Subject: Re: [IP] Re: Peter Swire: No, You Can't Search My Laptop
... that the Customs agents don't have the audacity to ask for the password of my home server on the grounds that I accessed it from abroad. (Yes, that's the next step.)
Brett, I don't think you should worry. Once you're information is past the border (or extended border) and on your server, warrants will be required. But you raise, perhaps unintentionally, the more likely (inevitable?) and interesting controversy: if Customs can search your information stored on physical media at the border without a warrant, why do they need a warrant to search it at the "electronic border" as you transmit the same information it to and from your server when you are abroad? That gets to the inevitable (IMHO) the intersection (overlap? conflict?) of FISA and border searches of electronic devices. If the government needs a warrant from the FISA court to intercept information in electronic data flows, why doesn't it also need a warrant when the same information is stored on a device rather than flowing? The fact that the information is stored (and not "fleeting" as it is when transiting the telecom networks) actually argues for a warrant for searching devices. Is there a reasoned argument that a warrant is required or not depending on the medium on which the information is found? I don't think so. Generally, the determining factor is the location of the search: no warrant (for non-personal searches) at the border, warrants elsewhere. The exception to this location-based determination is international telecom traffic and the exception doesn't make sense. Should the exception be the rule? If the FISA rationale is extended to requiring a warrant for searching electronic devices at the border, it might be a slippery slope: if a laptop search requires a warrant, how can a warrantless border search of a briefcase or luggage be justified? It would be an administrative nightmare to have a branch of the FISA court at every border crossing and virtual border point, but since when has administrative convenience trumped a constitutional right? BUT, the slippery slope could run the other way: if there is no need for a warrant to search static electronic devices at the border (as is the case now), why is there a need for a warrant to search fleeting electronic flows at the telecom equivalent of borders: gateway switches and routers? Given the choice of "warrants for all media at borders" (i.e., FISA for laptops and briefcases) or "no warrants for any media at borders" (no FISA for telephone calls or internet traffic), I would expect Congress or the Courts to favor the latter. Stay tuned. Bob On 8/3/08 3:22 PM, "Brett Glass" <brett () lariat net> wrote:
Robert: In that case, thank Heaven for encrypted X terminal sessions. I'll just have to make sure that my machine scrubs the temporary RAM that contained my SSH password, and that the Customs agents don't have the audacity to ask for the password of my home server on the grounds that I accessed it from abroad. (Yes, that's the next step.) --Brett At 09:57 AM 8/3/2008, Robert Atkinson wrote:Brett, Good try, but not good enough. The same can be said for pieces of paper, CDs, videotapes and photographs placed in a briefcase yet no warrant is required for the briefcase. Bob On 8/3/08 11:52 AM, "Brett Glass" <brett () lariat net> wrote:Your skull is a body cavity. And what is a laptop but overflow storage (sort of a storage locker) for your skull when it gets full? --Brett Glass At 07:30 AM 8/3/2008, Robert Atkinson wrote:So, for those IPers who are aghast at the current situation, what is the best argument for distinguishing a laptop from a briefcase or luggage and the best argument that a laptop is so "personal" that a search of a laptop is similar to a body cavity search?
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Current thread:
- Peter Swire: No, You Can't Search My Laptop David Farber (Aug 02)
- <Possible follow-ups>
- 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)