Re: Suspicion not required for border laptop seizures

[David Farber <dave () farber net>]

________________________________________
From: Declan McCullagh [declan () well com]
Sent: Friday, August 01, 2008 7:22 PM
To: David Farber
Cc: Steven M. Bellovin
Subject: Re: [IP] Re:     Suspicion not required for border laptop seizures

Steven M. Bellovin wrote:
> The wording of the policy bothers me even more than the policy itself.
> For one thing, while the discussion has been in terms of "they can do
> this when you enter the country", the policy applies to "information
> possessed by individuals who are encountered by CBP at the border,
> functional equivalent of the border, or extended border."  Does that
> apply to outgoing laptops?  The document says speaks of "evidence
> of embargo violations or other import or export control laws."  Export?

Good point. The new DHS policy applies to _outgoing_ laptops too.
Specifically, DHS has claimed the right to seize the hardware and
"analyze the information transported by any individual attempting to
enter, re-enter, depart, pass through, or reside in the United States."
See my article for details:
http://news.cnet.com/8301-13578_3-10004646-38.html

The DHS policy also mentions "copyright or trademark laws." I see no
reason why this wouldn't apply to scanning hard drives and iPods for
evidence of pirated software, music, videos, etc. -- which in some cases
would provide evidence of criminal violations of the NET Act. At the
very least it gives the *AAs a new opportunity for political activism.

> I'm also unclear on what the "functional equivalent of the border, or
> extended border" are.  Given the policies about checking for
> undocumented aliens on I-5 north of San Diego, does this mean that CBP
> can look at any data within San Diego?  What are their limits?

A Congressional Research Service report defines functional equivalents
thusly: (http://www.au.af.mil/au/awc/awcgate/crs/rl31826.pdf)

        >>>The “functional equivalent” of a border is generally the first
practical detention point after a border crossing or the final port of
entry. It is justified because in essence, it is no different than a
search conducted at the border and occurs only because of the
impossibility of requiring the subject searched to stop at the physical
border.

The second concept is "extended border," which the CRS defines thusly:

        >>>Under the “extended border search” doctrine, government officials
may conduct a warrantless search beyond the border or its functional
equivalent if (1) the government officials have reasonable certainty or
a “high degree of probability” that a border was crossed; (2) they also
have reasonable certainty that no change in the object of the search has
occurred between the time of the border crossing and the search; and (3)
they have “reasonable suspicion” that criminal activity was occurring.

I'd have to do more research to know how this applies in practice, but
it strikes me as a test that might sound good in theory but is applied
loosely in practice. (I'm sure someone on IP knows more about this.)

The I-5 "extended border" stops you're talking about are, supposedly, to
detect illegal aliens. In U.S. v. Martinez-Fuerte, the Supreme Court
said that checkpoint stops are OK because "neither the vehicle nor its
occupants are searched, and visual inspection of the vehicle is limited
to what can be seen without a search."

I can imagine circumstances in which DHS would try to extend "extended
border" searches to copying the contents of electronic devices in cars
on I-5. But I'm not sure, even given the composition of this Supreme
Court, that DHS would be allowed to get away with it for too long.

-Declan




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