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

[David Farber <dave () farber net>]

________________________________________
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?



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