Re: Appeals Court: Border electronics searches are okay

[David Farber <dave () farber net>]

________________________________________
From: David P. Reed [dpreed () reed com]
Sent: Thursday, April 24, 2008 11:15 AM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:   Appeals Court: Border electronics searches are okay

I'm a little worried about the suggestion of hiding data from the border
agents.

I've spoken to legal counsel at a major computer company, and their
suggestion is that it is NOT the employees responsibility to risk their
life or imprisonment if asked to turn over data at the border (and it is
not feasible at most borders to seek legal aid from one's employer to
resist, either).

Hiding corporate private data from border guard seizure (either in the
US or any other border guard situation) creates such risks for the
individual.   When the US claims it has the right, other countries will
follow, if they are already not doing so - even if the US uses the
technique rarely, it will have little sway over other countries that,
for example, seek to acquire competitively relevant data about business
plans or technologies.

Personal data hiding is even worse.   At the borders it may be viewed,
if discovered, as evidence leading to further harassment or
incarceration with few rights.

Discoveries of undeclared cash in suitcases, for example, have led to
signficant consequences for some.

One company I know of, and there are probably others, has a list of
countries to which one is encouraged NOT to carry a company laptop at
all, due to risks of confiscation, surreptitious access (if left in your
hotel room) etc.  The US may become such a country for certain
multinationals as well.

In my opinion, this tendency to view information stored in devices as
mere "goods" is a dangerous precedent, one being set by people who have
no understanding of the origins of the US notions of liberty and freedom
- a radical theory that places the government above the people.

David Farber wrote:
> depends on if you can hide it. Better, I think, is a very small size flash drive that you keep all your private stuff 
> on encrypted and "hidden"
>
> Dave
> ________________________________________
> From: EEkid () aol com [EEkid () aol com]
> Sent: Wednesday, April 23, 2008 7:40 PM
> To: David Farber
> Subject: Re: [IP] Appeals Court: Border electronics searches are okay
>
> Dr. Farber,
>
> I've noticed that it's very easy to remove the hard drive on some laptops.  Particularly the Dell's I've owned.  
> Removing two screws and the hard drive slides out connected to a plastic drawer like holder.  It can easily fit in a 
> pants or jacket pocket.
>
> If a border agent were to turn on the computer, it would simply fail to boot (no harm to the computer).
>
> I'm wondering if doing this would be enough to successfully protect an travelers privacy?
>
> Jerry
>
> In a message dated 4/23/2008 10:24:54 A.M. Eastern Daylight Time, dave () farber net writes:
>
>
> Begin forwarded message:
>
> From: Richard Forno <rforno () infowarrior org<mailto:rforno () infowarrior org>>
> Date: April 22, 2008 4:55:47 PM PDT
> To: Blaster <rforno () infowarrior org<mailto:rforno () infowarrior org>>
> Cc: David Farber <dave () farber net<mailto:dave () farber net>>
> Subject: Appeals Court: Border electronics searches are okay
>
>
> (be warned, ye who carry proprietary business information or personal data
> on your devices......rf)
>
> Border Agents Can Search Laptops Without Cause, Appeals Court Rules
> By Ryan Singel EmailApril 22, 2008 | 6:21:20 PMCategories: Privacy, The
> Courts
>
> http://blog.wired.com/27bstroke6/2008/04/border-agents-c.html
>
> Federal agents at the border do not need any reason to search through
> travelers' laptops, cell phones or digital cameras for evidence of crimes, a
> federal appeals court ruled Monday, extending the government's power to look
> through belongings like suitcases at the border to electronics.
>
> The unanimous three-judge decision reverses a lower court finding that
> digital devices were "an extension of our own memory" and thus too personal
> to allow the government to search them without cause. Instead, the earlier
> ruling said, Customs agents would need some reasonable and articulable
> suspicion a crime had occurred in order to search a traveler's laptop.
>
> On appeal, the government argued that was too high a standard, infringing
> upon its right to keep the country safe and enforce laws. Civil rights
> groups, joined by business traveler groups, weighed in, defending the lower
> court ruling.
>
> The 9th U.S. Circuit Court of Appeals sided with the government, finding
> that the so-called border exception to the Fourth Amendment's prohibition on
> unreasonable searches applied not just to suitcases and papers, but also to
> electronics.
>
> The ruling (.pdf) came in a case where customs agents searched the laptop of
> Michael Arnold who was returning from the Philippines. They found images
> they believed to be child pornography, seized the laptop and later arrested
> him. While the lower court ruling excluded from trial the pictures of young
> boys the government says it found on the hard drive, they now can be used
> again.
>
> The panel chose to follow the reasoning of a similar case from the 4th
> Circuit, known as Ickes (.pdf), which held that the government did not need
> any reason to search a vehicle crossing the border.
>
> The 9th's ruling did not, however, clarify whether a traveler has to help
> the government search his computer, by providing the login information, or
> what would happen when the government decided to search a laptop with
> encrypted data on the drive. The defendant in the case can appeal the
> decision to the U.S. Supreme Court, but the Court is unlikely to take up an
> issue that two separate appeals courts have agreed upon.
>
> In the meantime, travelers should be aware that anything on their mobile
> devices can be searched by government agents, who may also seize the devices
> and keep them for weeks or months. When in doubt, think about whether online
> storage or encryption might be tools you should use to prevent the feds from
> rummaging through your journal, your company's confidential business plans
> or naked pictures of you and your-of-age partner in adult fun.
>
> The case is Arnold vs. USA.
>
>
>
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