Re: DHS responds on laptop searches; direct action campaigns

[David Farber <dave () farber net>]

________________________________________
From: Mike Godwin [mnemonic () gmail com]
Sent: Wednesday, August 06, 2008 6:03 PM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:  DHS responds on laptop searches; direct action campaigns

<Corrected version>

Robert Atkinson writes:

> > Their basic point remains the same  customs has checked people¹s
> > items at the
> > border for 200 years, so they can check your laptop.
>
> It's not a bad point and Jayson Ahern's explanation sounds pretty
> reasonable. Is there a decent rebuttal? Does anyone believe that
> Customs
> shouldn't search briefcases and luggage?

I think this comment is a bit disingenuous. If there is an argument
for distinguishing laptops from briefcases and luggage, it does not
require an argument that Customs shouldn't search briefcases and
luggage.

Border searches for contraband are a very old tradition. The tradition
of searching and *reading* documents is rather newer, and the Supreme
Court jurisprudence on that issue really begins at Boyd v. United
States, 116 U.S. 616 (1886). The Supreme Court recognized at the time
that production of documents raised both Fourth and Fifth Amendment
concerns -- that there is a question of reasonableness and an element
of compelled self-incrimination in being required to show all your
documents. It's true the law of document searches has been expanded
and refined since then, but no so far as to wholly eliminate Fifth
Amendment protections.

Perhaps you don't think the Fifth Amendment applies to searches for
copyright-infringing materials or for child pornography. (Here one has
to ask whether the need-to-search tail is big enough to wag the
Constitutional-rights dog.) But it is more likely that it does apply
if DHS requires disclosure of encryption keys. As for things like Due
Process, well, at some point even Robert Atkinson has to ask whether
having to submit your whole life to inspection at the border might
shock the conscience (the Rochin v. California standard).  Of course,
if you lack a conscience, there may be nothing that shocks you.

> The only response I've seen was:
>
> > 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?
>
> Is that the best IPers can do?

I think you haven't seen all responses. Look again.


--Mike







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