Another Letdown from Team Obama

I’m tired of keeping track of what hasn’t changed:

The Obama administration will largely preserve Bush-era procedures allowing the government to search — without suspicion of wrongdoing — the contents of a traveler’s laptop computer, cellphone or other electronic device, although officials said new policies would expand oversight of such inspections.

The policy, disclosed Thursday in a pair of Department of Homeland Security directives, describes more fully than did the Bush administration the procedures by which travelers’ laptops, iPods, cameras and other digital devices can be searched and seized when they cross a U.S. border. And it sets time limits for completing searches.

But representatives of civil liberties and travelers groups say they see little substantive difference between the Bush-era policy, which prompted controversy, and this one.

I’m not sure how anyone can defend a policy that your personal electronic equipment can be seized and searched for no reason whatsoever. “Shut up, that’s why” might work for right-wing blogs, but as a policy for the government, it is inexcusable.






138 replies
  1. 1
    BFR says:

    I’m not sure how anyone can defend a policy that your personal electronic equipment can be seized and searched for no reason whatsoever.

    Whether it’s good policy or not is open for debate but I see no reason why this should be illegal.

    As far as I know, the US Customs Service has near dictatorial power to search anyone crossing the border (and always has).

  2. 2
    JK says:

    On the one hand, Obama is leaving many Bush policies intact. On the other hand, the chorus of wingnuts calling into C-SPAN’s Washington Journal claiming that Obama despises the Constitution and is filling the White House with communists is neverending.

  3. 3
    Lee from NC says:

    @BFR:

    Um, because digging through private information is not the same as searching for banned substances or dangerous weapons, or what not.

  4. 4
    burnspbesq says:

    @BFR:

    Exactly. I think it sucks, but there is no doubt that it is Constitutional. As my Crim Pro prof in law school said, “the border is different.”

  5. 5
    SGEW says:

    Well, we kind of have to admit that the Obama administration has, so far, failed on the issue of individual privacy. Oh, and governmental secrecy.

    I think it may boil down to the paradigm shift in information freedom, privacy, and technology (yes, I hate the phrase “paradigm shift” too, but I think that it’s actually accurate and appropriate here). I predict that it’ll be one of the next generation’s key political issues – and I suspect that Obama will wind up on the losing side of history. Google. Piratebay. FISA. Encryption. Etc.

    [David Brin had an interesting take on it all in “The Transparent Society.” Recommended read.]

  6. 6
    wilfred says:

    Obama can’t let us down, only we can let down Obama.

    A few days ago it was continuing rendition. Sending ‘terror’ suspects abroad but making sure they wouldn’t be tortured OFFICIALS SAID. But then why send them abroad?

    No offense, John, but you got all pissed off when some of us fired off warning shots about Fisa. Satisfied?

  7. 7
    eric says:

    @BFR: agreed. this is a border crossing and not any TSA checkpoint. I was never aware there was any controversy in the first place. We have been living without the Fourth Amendment for a while.

    (Does this rule apply to US citizens?)

    eric

  8. 8
    Lola says:

    Too bad the teabaggers and libertarians don’t care about actual civil liberty violations, huh?

    I read an interesting article some months ago about why Obama is keeping so many of these policies in place. The short answer is: the public likes these policies. The closing of Guantanamo is now unpopular which reflects this mindset.

    I’m not excusing Obama I’m just saying that Obama scores points with the Beltway crowd anytime he keeps a bad Bush policy.

    For many reasons, the US is not a shining beacon on the hill. We are not really a democracy, and our electorate is just fine with that. In fact, they will actually protest a president trying to protect their rights and fight corporate interests.

  9. 9
    catclub says:

    >>>
    I’m not sure how anyone can defend a policy that your personal electronic equipment can be seized and searched for no reason whatsoever.
    >>>
    It is justified because when it crosses the BORDER it (or any other thing
    that crosses the border) is implicitly subject to search.

    Let’s apply John’s logic to cargo containers:
    “I’m not sure how anyone can defend a policy that your ENTIRE cargo
    container can be seized and searched for no reason whatsoever.”

    The policy is STUPID because digital data can be transmitted over the border
    through the internets, to avoid these seizures.
    So it only inconveniences the law abiding (and ignorant).

  10. 10
    BFR says:

    Um, because digging through private information is not the same as searching for banned substances or dangerous weapons, or what not.

    Like when they rifle thru your luggage in customs when you fly back to the US? It’s always been this way – IT equipment presents a scenario but the rules have always been this way.

  11. 11
    burnspbesq says:

    @Lee from NC:

    Well, except that kiddie pr0n, stolen proprietary business information, and the like are “banned substances.”

    I’m not horrified by what is being done – I’m pissed because it’s being done in an unnecessarily intrusive way.

    Customs was a lot easier to deal with when it was part of the Treasury Department.

  12. 12
    El Tiburon says:

    The new guy in the White House is black.

    This has changed.

    The current VP is not a douchebag.

    This has changed.

    Other than that, not so much.

  13. 13
    catclub says:

    Lola@8
    Made the best point on the subject.

  14. 14
    Dork says:

    What again is the statute of limitations I have to wait before I can say I’m disappointed in Obama? Is it “wait until he’s been there one year”, or “give him until he has all his advisors in place”, or perhaps “just wait until the (notgunnahappen) health care reform is finished”?

    How does this pass 4th Amendment muster, honestly?

  15. 15
    Chad N Freude says:

    @eric:

    (Does this rule apply to US citizens?)

    I believe it does.

    Would anyone like to see my collection of those friendly little notes that TSA leaves in my suitcase when I fly home from a foreign country? (I am a citizen, although the font on my birth certificate is probably not correctly kerned.)

  16. 16
    GReynoldsCT00 says:

    “without suspicion of wrongdoing” this bugs me… what’s to stop some border agent with an attitude to just go through your computer for the hell of it? Badges don’t equal professional, unfortunately

  17. 17
    burnspbesq says:

    @Dork:

    Because it’s the border, and the Fourth Amendment has always stopped at the border. Part of being a sovereign nation is the plenary right to decide what can and can’t come into the country, and under what circumstances (e.g., only upon payment of a customs duty).

    Constitutionally, searching your hard drive for kiddie pr0n is exactly the same as searching your luggage for that undeclared Rolex.

  18. 18
    jibeaux says:

    It’s true that the border is different, and I have my doubts that a 4th amendment challenge would be successful. Still, pre-Bush the standard according to the WaPo was reasonable suspicion, which seems reasonable enough to me.

    It is also disheartening that this part is presented as an improvement:

    /blockquote/ For instance, searches conducted by U.S. Customs and Border Protection officers should now generally take no more than 5 days, and no more than 30 days for searches by Immigration and Customs Enforcement special agents. /end blockquote /

    You know, I don’t need my laptop on vacation anyway and I don’t travel abroad (or anywhere) for work, but some people do. I’m not sure they will feel reassured by the information that their random search should take no longer than 30 days.

  19. 19
    BFR says:

    How does this pass 4th Amendment muster, honestly?

    Because as burnspbesq put it “borders are different.” There’s a Border Search exception to the 4th Amendment.

  20. 20
    cleek says:

    Other than that, not so much.

    S-CHIP
    stem cell research
    Sotomayor
    got more than 700,000 gas-guzzlers off the roads

  21. 21
    Shinobi says:

    Time to get an ironkey. https://www.ironkey.com/

    Search that, jerks.

  22. 22
    Chad N Freude says:

    I’m resigned to the possibility of having my computer searched (hasn’t happened yet, but …). I recommend TrueCrypt for protecting “that kiddie pr0n, stolen proprietary business information, and the like”.

  23. 23
    Sentient Puddle says:

    @jibeaux:

    For instance, searches conducted by U.S. Customs and Border Protection officers should now generally take no more than 5 days, and no more than 30 days for searches by Immigration and Customs Enforcement special agents.

    Jesus, what was it under Bush, indefinite seizure?

  24. 24
    BR says:

    The irony is that the Internet doesn’t stop at the border. So it’s trivial to encrypt your sensitive data, upload it to a server, and then retrieve it when you are safely back home. They can’t search your data that’s stored at some other server when you’re entering the country.

  25. 25
    Comrade Jake says:

    @wilfred:

    A few days ago it was continuing rendition. Sending ‘terror’ suspects abroad but making sure they wouldn’t be tortured OFFICIALS SAID. But then why send them abroad?

    We send them abroad because we work with other countries on terrorism. Sometimes those allies want to talk to people we’ve got. You can debate whether or not we should be doing that, but rendition is not equivalent to torture.

  26. 26
    Chad N Freude says:

    @GReynoldsCT00:

    what’s to stop some border agent with an attitude to just go through your computer for the hell of it?

    I once had customs go through my bag trying to figure out possible nefarious uses for an animated Godzilla doll. (It was really cool. If you made a loud noise, like clapping, it would roar and wave its arms.)

  27. 27
    burnspbesq says:

    @jibeaux:

    You’re right; that’s not reassuring. What is reassuring to me is that I’ve been outside the country for work at least 20 times since 9/11, returning to the US from seven different countries, and have never seen anyone get taken aside.

    If I ever got pulled aside, I would ask to see a supervisor immediately, and would very politely throw a huge hissy fit about them trampling all over my clients’ attorney-client privilege for no good reason. Don’t know whether it would work, but it would be worth a try. Plan B would be to offer them the backup copy of my “my documents” folder that I keep on a USB drive on my key ring.

  28. 28
    catclub says:

    Jibeaux@18
    I think that ‘everyone knows’ that France spies for French Companies
    (think Airbus vs Boeing )
    and I wouldn’t be surprised if ‘everyone knows’ that the US spies for US companies (think Boeing vs Airbus ).

    Therefore, business travelers are pretty well forewarned:
    either don’t bring it if it is secret, or expect it to be subject to search.

    The internet and encryption ore are marvelous tools, use em.

  29. 29
    catclub says:

    burnspbesq@27

    Rotsa ruck on that approach.

    See instead BR@24 for an effective one.

  30. 30
    Josh says:

    I’m only 21, so I’ve got a lot of learnin’ to do yet; however, I still think that there is something inherently wrong with this. I can see the pros and cons, I can see how the suspension of the 4th at boarders can be rational–but I still can’t shake the feeling that there is something off about a policy like this.

    It could just be my idealism. I guess I’m just putting history to use by wondering if they’ll ever institute something like this on domestic travel.

    To be honest, the more I learn about politics and the way it works in the real word as opposed to the written law in the constitution, I feel a little more cynical, and a little less hopeful about how this country works.

    I guess bitter old people have a way of taking excited idealism from young people and turning it into the next generation of bitter.

  31. 31
    Bhall35 says:

    Actually, I think this has more to do with impending changes in international copyright law, IIRC. Start with this link from Boing Boing, and then read the previous links going back to the beginning:

    http://boingboing.net/2009/03/.....raion.html

  32. 32
    BFR says:

    You’re right; that’s not reassuring. What is reassuring to me is that I’ve been outside the country for work at least 20 times since 9/11, returning to the US from seven different countries, and have never seen anyone get taken aside.

    I don’t doubt that there are abuses – some of them have been reported (people held in detention for days on end for no reason).

    My point is just that this isn’t anything new, it’s always been a pain in the ass to get through US customs. Creating a privacy right for IT equipment would be a (huge) departure from longstanding policy.

  33. 33
    gopher2b says:

    Not saying this is right or wrong but this policy didn’t start with Bush. I don’t believe you’ve ever had search and seizure rights over your property when you went through the border. They just started applying it to computer and cell phones (as opposed to taking your car apart)

  34. 34
    JHF says:

    Man, these goons are making me not EVER want to cross the border unless it’s one-way travel (OUT!)…

  35. 35
    kormgar says:

    It saddens me, but I’ve long since given up any hope that Obama the president might in any way resemble Obama the candidate or Obama the state senator on civil liberties issues.

    He is still a vast improvement over than the Republican alternative, but his presidency has transformed into a very bitter pill. And now…I simply cannot imagine a situation where I could in good conscience donate my time and money to his campaigns.

  36. 36
    The Main Gauche of Mild Reason says:

    There’s a simple solution: encrypt your shit. They might have the right to turn on your computer, but they can only get the encryption key if you give it to them.

    Of course, if enough people do that eventually some idiot judge will rule encryption is the same as a padlock, and we’ll be back at square one. But it’ll be awhile.

  37. 37
    Johan Santana says:

    Sí se puede…

  38. 38
    Bill H says:

    I don’t think it means they are routinely going to do it, or do it on whim, only that if they need to do it they can. Sure it’s open to abuse, but we’ve had laws for centuries that are open to abuse. I don’t like this, but I think we have far more serious things to be having the vapors about.

  39. 39
    freelancer says:

    OT- but Sullivan just re-emerged and called out The New Republic on their sophomoric wanking:

    “There are plenty of Old Media haunts where the marquee writers still turn up their noses at the web,” – Frank Foer, on the revamped TNR.com.

    “The Internet is like closing time at a blue-collar bar in Boston. Everyone’s drunk and ugly and they’re going to pass out in a few minutes,” – Leon Wieseltier, literary editor of TNR.

  40. 40
    jibeaux says:

    @catclub:

    I am just pondering that even if you cleverly encrypted and uploaded your data to a remote server and so you had nothing to search, etc., it sure seems like if you brought any form of hardware with you they could still tell you that they would undertake to complete their search within 30 days.

    Plus, I’m no expert on security measures, but I have definitely heard a number of such folks talk about how random screenings are more or less pointless. The reason it seems silly to make 80 year old Iowa grannies take off their shoes looking for shoe bombs is because it is silly.

  41. 41
    handy says:

    This is why Bush was so freaking disastrous. He completely changed the so-called Overton Window on civil liberties, executive authority, and waging war unprovoked against sovereign nations. He completely re-wrote the map, and so now a guy like Obama settles in and acts according to the new standard of what is acceptable and what the body politic will allow.

    We need a Reset button somewhere, but I’m not sure where or when that exists, and frankly I’m not sure I would want to know what exactly that would entail. Probably something no less than a total breakdown of the whole system.

  42. 42
    malraux says:

    @The Main Gauche of Mild Reason: The problem with that is they then seize your computer and send it off to be de-encrypted. That has been the problem with this policy; the seizing of anything that might contain illegal data.

  43. 43
    BFR says:

    They might have the right to turn on your computer, but they can only get the encryption key if you give it to them.

    Here’s what it actually says:

    “For instance, searches conducted by U.S. Customs and Border Protection officers should now generally take no more than 5 days, and no more than 30 days for searches by Immigration and Customs Enforcement special agents”

    Note the word “generally.” I’m guessing if you won’t cooperate by decrypting your machine, you probably won’t ever see it again.

  44. 44
    Sentient Puddle says:

    @The Main Gauche of Mild Reason: This made me curious as to whether or not there was any legal rulings on cryptography. Unfortunately, I’m coming up pretty short. The most concrete thing I’m coming up with is the Wassenaar Arrangement, an international treaty the US is part of that states encryption with short-length keys won’t be export controlled. Unfortunately, this was back in ’96, and “short-length” keys was defined as 56-bit (if we’re talking symmetric encryption), obviously with DES in mind.

    I suppose this means that there’s reasonable protection for 256-bit encryption (AES or something of the sort), but yeah, doesn’t stop the idiot judge from ruling that we all have to use an encryption that can be brute-forced in no more than two days. Joy.

  45. 45
    Libby says:

    F’ing depressing. I didn’t expect very much from Obama, but I did expect better than continuing the most invasive of the Bush era invasions of privacy.

    It may be legal but it’s still invasive and I for one would like to know if any actionable or even mildly useful intel has been obtained by it. I’d suggest it hasn’t or else we would have heard about “thwarted plots.”

  46. 46
    crayz says:

    Well John, to be honest you were the one counseling patience again and again and again as the Obama team started to show it wasn’t serious about reversing the civil liberties abuses of the Bush administration

    And now it’s nearly September and you’re complaining, but who cares anymore. Try to push this into the mainstream discourse and it will all be seen as old news

    You can’t give an inch and an inch and an inch and then complain when they take a foot

  47. 47
    BFR says:

    I didn’t expect very much from Obama, but I did expect better than continuing the most invasive of the Bush era invasions of privacy.

    This isn’t FISA Part 2. This isn’t a new policy, this is a new-ish guideline in response to new technology.

  48. 48
    Tom G says:

    for Lola, post #8 – there actually ARE many libertarians who are not happy about the border searches, and have said so.
    I will have to search for links later this evening.

    for post #36 – concerning encryption, there was a recent ruling that a man who initially had an un-encrypted hard drive and allowed a search, and LATER the drive was found to be encrypted, was required to give up his decryption key.

    http://news.cnet.com/8301-13578_3-10172866-38.html

    It’s not clear whether this would apply to hard drives that ALWAYS had been kept encrypted.

  49. 49
    steve s says:

    Do what I do and give as much money as you can to the ACLU. If you don’t think you like them, go to their website and read their basic dozen or so issues, and about the cases they get involved in. In my opinion, giving them money is the single most important thing you can do for preserving freedom in this country.

  50. 50
    Fulcanelli says:

    I’m hoping there’s at least a possibility that Obama’s keeping many of Bush’s security policies in place and spy apparatus violations tamped down to keep his right wing opposition from howling about leaving the country vulnerable to attack while he’s trying to get aspects of his domestic agenda done.

    And then there’s the torture/war crimes investigation issue which is starting to heat up which has political napalm written all over it….

    Hope, however burns like a candle and my fingers are getting warm…

  51. 51
    djork says:

    It’s not ALL bad. It may have saved us some mopey music.

    http://www.boingboing.net/2007.....cutie.html

  52. 52
    gnomedad says:

    @SGEW:

    [David Brin had an interesting take on it all in “The Transparent Society.” Recommended read.]

    Seconded.

  53. 53
    Legalize says:

    “If I ever got pulled aside, I would ask to see a supervisor immediately, and would very politely throw a huge hissy fit about them trampling all over my clients’ attorney-client privilege for no good reason. Don’t know whether it would work, but it would be worth a try. Plan B would be to offer them the backup copy of my “my documents” folder that I keep on a USB drive on my key ring.”

    Every time I go to court and put my brief case through the metal detector I always wonder about attorney client privilege, but no security guard has ever even looked at me twice. We have duty to prevent the dissemination of privileged material. But it’s never come up in my limited experience. I set the stupid machine off almost every time due to forgetting to take some metal object out of my pockets and they never wand me. None of the other lawyers seem worried about it, so I forget about it. But this issue HAS to have come up at some court house, customs and/or TSA checkpoint somewhere.

  54. 54
    Svensker says:

    Americans have gotten very used to not being free. If you can find it, watch the (crappy, 50s) movie The High and The Mighty. You will be astonished at how different things were and how amazingly free we were then The poor, sad refugee from Chinese communism in the movie keeps bringing up things his government does and the Americans are all appalled — of course, it’s all routine stuff for the U.S. nowadays. Including intrusive border checks.

  55. 55
    wilfred says:

    @Fulcanelli:

    Ah – Vietnam for The Great Society. Afghanistan for Health Care.

  56. 56
    edmund dantes says:

    If recall correctly, there is a case about customs having the right to force you to reveal the encryption key so they could search the contents.

    http://www.aclunc.org/issues/t.....ders.shtml

    This is ACLU’s state of the art solution at this point. Encrypting and Uploading the data and removing it from your harddrive while crossing border then re-download it.

    The first solution is very problematic. A US Customs agent will turn on your laptop, see the encrypted partition or folder, and ask you for your password. If you are a US citizen, saying no may lead to you losing your laptop. If you are not a US citizen, you may be rejected entry to the US. No matter what happens, the mere presence of encryption software is likely to lead to you being exposed to significantly more suspicion.

    The second solution, while an innovative application of technology, also has many problems. If a user has hidden the entire encrypted folder, or has opted to use the multiple levels of plausibly deniable encryption, they can still be undone with two simple questions: “Sir, do you have any encrypted data on this disk?” and “Sir, do you have any additional encrypted data on this disk?”

    This can put you in a very bad situation-disclosing the data or lying to law enforcement. Lying to US Customs or other law enforcement officer may result in criminal prosecution. Just ask Martha Stewart, who was indicted, under Title 18, United States Code, Section 1001, for lying to federal government agents.

    So, the only way to protect your confidential information until the law is settled may be option number three. Prepare and encrypt your data ahead of time, and upload that encrypted data to the Internet. When you do get stopped by a US Customs agent, you will be able to truthfully state that you have no sensitive or encrypted data at all on the computer. With a clean laptop, you can travel through customs with confidence that confidential data will remain protected.

  57. 57
    Sentient Puddle says:

    @Tom G: Yeah, I ran across that too, and I found it to be pretty ambiguous on the question of whether or not it applies to the scenarios we’re imagining. The ruling appears to have been made because the authorities knew the illegals were on the encrypted drive. But it doesn’t really speak to the situation where authorities suspect that you’ve got stuff on your drive.

    So…yeah. Don’t know.

  58. 58
    Sean says:

    @jibeaux:

    For businesses, capricious and arbitrary seizure of computer equipment at the border isn’t some abstract concept or inconvenient necessity. When you’re traveling on business and your equipment is seized, there goes the whole reason for your travel. Furthermore, if the data is time-sensitive, it may be worthless by the time you get it back, if ever. Finally, your business partners may not want to work with you anymore if they know a foreign power could be divulging the details of your next merger or acquisition. There is a history of government complicity in industrial espionage.

    Security Researcher Bruce Schneier notes that, while you can’t prevent the media from being seized, you can deny access to the data it contains by customs agents.

    Its inconvenient and requires pre-planning, but its well within the means of any business traveler. Which means its well within the means of any would-be evil doer. Which means the whole exercise of seizing computers and cel-phones is pointless.

    At best, you’ll catch a clueless, stupid, petty crook. The clever criminals, the ones who actually have some hope of succeeding in their task, will always sail right through.

    -Sean

  59. 59
    Don says:

    got more than 700,000 gas-guzzlers off the roads

    Surely you’re joking. That turd of a program might have been effective as an economic stimulus but it was a net loss for the environment.

    All vehicles destroyed/parted out, regardless of what kind of condition they were in. A perfectly good car could come in and they’d still have to destroy the engine and send the car out for parts/scrap.

    But a 30 year old car with no airbags? Doesn’t qualify, meaning it doesn’t get taken off the road. A 1986 Accord, for example, gets 23mpg but lacks airbags or automatic belts, but still doesn’t qualify. It’s probably got cylinders so sloppy that it burns oil and might not have emissions that would pass in some states, but it still can’t be turned in.

    A 10 year old Explorer qualified for the full $4,500 even if the buyer replaced it with a vehicle that only got -2- miles per gallon better mileage.

    Two.

    And all these cars that people ran out and bought means they won’t be in the market for cars with better mileage under standards that haven’t come into play yet. We’ve shoved a bunch of vehicles out onto the roads and taken their buyers out of the market for new vehicles for the next 2-5 years just when more efficient stuff will enter the marketplace.

    This program may have done some good things, but getting “gas-guzzlers” of the road wasn’t one of them.

  60. 60
    buggy ding dong says:

    I may be wrong but I think the vast majority of his slip in the polls is due to progressives (Democrat and Independent) being downright pissed off at how little has been delivered so far.

    We are no closer at all to withdrawl from Iraq, regardless of the latest timetable;

    We are no closer to actually shutting down Gitmo;

    We have, at best, a promise of a torture investigation that will leave out the architects of the trashing of the constitution;

    We are bleeding on health care reform with very little real leadership from the White House until the last two/three weeks;

    We haven’t even looked at repealing the Bush Tax cuts;

    So far, we got a very good budget and a very weak stimulus and that’s about it. We may well get a good health care bill (very much in doubt) but does anyone believe that we will even attempt to reverse the Bush tax cuts in 2010? 2011 with Obama preparing for re-election?

    What we get done in the next 6 months is likely to be the apex of what gets done until 2012 and that doesn’t seem to be what we expected with 60 fucking seats.

  61. 61
    Punchy says:

    The goofs at the Kansas City “Airport” are so mind-boggling rote that there’s about zero chance for them to search my lappy and find my FreeCell and links to Cole’s terrorist blog.

    So for that I’m happy.

  62. 62
    Bruce (formerly Steve S.) says:

    “Well John, to be honest you were the one counseling patience again and again and again…”

    Some of us warned that all the “Change” BS was just that and that the Obama Admin would represent, at best, marginal “change” with a small “c”. There was ample evidence for this point of view — Obama’s history of compromise on issues of principle as well as policy, naming Rahm Emmanuel COS, and so forth — but generally, we were told to STFU.

    Reminds me of a story from ancient history, when DFHs warned that an invasion of Iraq was illegal, immoral, and inadvisable. There was ample evidence for this point of view — documentation of the destruction of over 90% of Saddam’s WMDs, further testimony from regime insiders that they had all been destroyed, the failure of inspectors to find WMDs, and much more — but the DFHs were generally told to STFU. Ah, memories.

  63. 63
    BillCinSD says:

    The real question is the definition of the border. IIRC Homeland Security (possibly as part of Real ID) looked at expanding the border area several miles (possibly more). Eventually most everywhere will be in a border zone. That’s how you make the Constitution irrelevant

  64. 64
    Zifnab says:

    @wilfred: It’s worth noting that we’re not longer in Vietnam but we’ve still got Medicare.

    That said, I agree. It’s a truly shitty deal.

  65. 65
    wilfred says:

    @Zifnab:

    The politics of dilemma. Until some generation starts to question that politics, we’re stuck with it.

  66. 66
    Tonal Crow says:

    @BFR: I am unsure where the 4th Amendment says that it contains a “border exception”. Activist judges created that out of whole cloth.

  67. 67
    SGEW says:

    I guess I’ll just put my standby line here:

    Obama is a disingenuous, hypocritical, triangulating, scheming, cold hearted, cynical, and bloody handed politician who nevertheless may wind up being one of the best presidents this country has ever had, simply because every single American president was a monster who oppressed and killed innocent people, with virtually no exception [1].

    Historical context: a blessing and a curse.

    [1] William Henry Harrison doesn’t count, because didn’t have enough time in office to do harm.

  68. 68
    BFR says:

    I am unsure where the 4th Amendment says that it contains a “border exception”. Activist judges created that out of whole cloth.

    Here’s a writeup on FindLaw for what it’s worth:

    Border Searches .–”That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.” Authorized by the First Congress, the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.”

  69. 69
    Tonal Crow says:

    @handy:

    This is why Bush was so freaking disastrous. He completely changed the so-called Overton Window on civil liberties, executive authority, and waging war unprovoked against sovereign nations. He completely re-wrote the map, and so now a guy like Obama settles in and acts according to the new standard of what is acceptable and what the body politic will allow.

    Yes. This is why we desperately need to prosecute Bush’s blatant illegalities (e.g., torture, warrantless wiretapping) and investigate (and then, if justified, prosecute) his likely illegalities (e.g., lying us into Iraq).

  70. 70
    liberal says:

    @Comrade Jake:

    You can debate whether or not we should be doing that, but rendition is not equivalent to torture.

    Correct. It’s equivalent to outsourced torture.

  71. 71
    liberal says:

    @kormgar:

    It saddens me, but I’ve long since given up any hope that Obama the president might in any way resemble Obama the candidate or Obama the state senator on civil liberties issues.

    But that’s precisely the point. If you look at Obama the US Senator, he really wasn’t all that liberal, if you consult his ADA score. He was pretty close to Hillary.

  72. 72
    arguingwithsignposts says:

    Beck beats “Mad Men” in ratings (via Politico). That’s sad.

  73. 73
    Vince CA says:

    While I cannot excuse the WH, I will not allow my private data to be manhandled by the TSA. These are the idiots who took organic peanut butter away from my pregnant wife because it was a “liquid”. I leave it as an exercise to the reader to beat their head against the wall as to the viscosity of PB.

    I encrypt everything of value, and I do it under Linux. I find that the gov’t (with the notable exception of the NSA) doesn’t under stand Mac, much less Linux. They can’t even understand this laptop is running Ubuntu (“What country is that?”).

    Good luck to “Team I-can’t-define-liquid-much-less-understand-how-do -you-say-viscosity?” finding anything on my laptop.

  74. 74
    peach flavored shampoo says:

    Fuck that shit, ’cause I ain’t tha one
    For a punk muthafucka with a badge and a gun
    To be beatin on, and throwin in jail
    We could go toe to toe in the middle of a cell

    Fuckin with me ’cause I’m a teenager
    With a little bit of gold and a pager
    Searchin my car, lookin for the product
    Thinkin every nigga is sellin narcotics

  75. 75
    Nutella says:

    Yes, your luggage can be searched and you can be strip-searched and detained for hours or days if the border agents say so. That doesn’t make the taking or copying of electronic data without probable cause any less of an outrage. Keeping your equipment for five days means they’re not only copying it, they are also punishing you by preventing you from using your computer without having to provide even an accusation of wrongdoing, much less a conviction.

    It is grossly improper and disgusting that we do this and it’s another demonstration that the wild-eyed left-wing radical in the White House is in practice a fairly right-wing authoritarian. He’s more than happy with a police state as long as he’s the chief of police.

    Encryption won’t help because they can force you to divulge the code. If you have sensitive information the only thing to do is have a very clean, new travelling laptop that has no data on it at all and access encrypted data over the web. You have to trust your ISP or whoever is holding the data not to record the passwords as you type them so if you’ve got really sensitive stuff you might want to encrypt twice with two different organizations.

    It is sad that we have come to this. It is even sadder that so many commenters here seem to think it is OK.

  76. 76
    colleeniem says:

    @BFR: Thanks, BFR.
    Border crossing inspection, always have, and always will be an area in which search and seizure law is more severe than anywhere. This only applies, obviously, to international crossings.
    There needs to be strict oversight; that I agree with. But this is not just a draconian Bush-era policy that sprang up overnight which Obama has failed to take down–it mostly has to do with the technology, as BFR has eloquently stated. I also agree with steve s, that the best thing you can do is to support your ACLU as best you can–I do, that is entirely self defeating to my line of work (DHS/Coastie type). There needs to be checks and balances, and a border crossing is historically one place where security is regularly given priority.

    When you get your information taken and destroyed, then it is time to rise up, but I’m a little wary of becoming despondent because the government is ham-fistedly regulating new technology. And it is new technology to them. Hey, we here in my agency were patting ourselves on the back because we just installed Windows Vista our computers this past month. It was not unheard of, in those days of yore, that customs agents could rifle through all your documents…now we just have a new shiny way of toting them around.
    I guess what I am saying is this isn’t really worthy of the ire people think it is, imho. But hey, sometimes I’m the “Man”.

  77. 77
    liberal says:

    @buggy ding dong:

    We haven’t even looked at repealing the Bush Tax cuts;

    Most of the Bush tax cuts don’t have to be repealed. For technical reasons involving the budget process, most of the cuts had sunset provisions.

    So if you do nothing, most of them will expire.

  78. 78
    arguingwithsignposts says:

    @jibeaux:

    You know, I don’t need my laptop on vacation anyway and I don’t travel abroad (or anywhere) for work, but some people do. I’m not sure they will feel reassured by the information that their random search should take no longer than 30 days.

    I would think that anyone who was doing business overseas and was legitimately worried about border searches could use a scrubbed/new laptop without personal information and use VPN to connect to any files they needed to work on from their office.

    Google Docs alone would prevent the Border Patrol from seeing sensitive docs if you didn’t leave the password in the browser. There are also cloud-based places to store large files. It’s not like you have to have all that info on a computer you’re taking out of the country.

    And if they seized the computer for 5-30 days, well, it’s no big loss because the important stuff is stored elsewhere.

    Simple, really.

  79. 79
    GReynoldsCT00 says:

    @arguingwithsignposts:

    that’s downright scary

  80. 80
    colleeniem says:

    By the way, I’m not encouraging customs agents rifling through papers for no reason, I’m just saying that this is a new issue in the form that is takes. Progressives should call the administration on it. But it’s bigger than just one man, it is an entire culture of law enforcement. Therefore, it would be unrealistic to become despondent, again, IMHO. Change of this nature was never going to be quick, or easy.

  81. 81

    Obama sucks on civil liberties and I’m tired of the fact that people make excuses for him. Yes, he doesn’t suck as badly as Bush does, so what, he still sucks. He bitched out on telecom immunity last year to score some easy votes and gain national security cred with the beltway crowd and he’s bitching out this year on civil liberties because it’s an easy win for him with the Festung Amerika crowd and because he knows that the DFH’s, ACLU members and all of those other people who are concerned about things like the Fourth Amendment have nowhere else to go. I’m also annoyed by the fact that there are a whole bunch of liberals out there, whom, if Obama said “Look, I’m going to go all out for single payer healthcare and a carbon tax, but in order to have the political cover to do so I’m going to need to keep troops in Iraq and AfPak, invade Iran, expand Gitmo and eliminate the 1st, 2nd, 4th, 5th, 6th, 8th and 14th amendments”, would say “Yay! Single payer at last. Hallelujah! Change we can believe in.”

    And please, if I hear one more BJ poster start talking about how this is part of some “long game” strategy on Obama’s part I will find out where you live and leave a flaming bag of poo on your front porch, which you of course will be stupid enough to stamp out wearing your new shoes. All of this “long game” nonsense is starting to sound like the idiocy that Assrocket was spouting five years ago about how hard it was to be George W. Bush because he was secretly so brilliant and had such artistic flair.

  82. 82
    Rick Taylor says:

    Look at the good side. Perhaps the wingnuts may now rediscover the value of civil rights, rule of law, and limited government.

  83. 83
    Shawn in ShowMe says:

    Just out of curiosity, many people on this thread even knew this policy existed under Bush?

  84. 84
    arguingwithsignposts says:

    @Nutella:

    I see Nutella beat me to the new laptop thing by a few minutes.

  85. 85
    arguingwithsignposts says:

    @Shawn in ShowMe:

    I did. I remember posting on some blog about this when it first came out. Maybe it was Declan McCullough’s tech newsletter.

  86. 86
    Tonal Crow says:

    @BFR:

    Here’s a writeup on FindLaw for what it’s worth:
    Border Searches .—’‘That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.’’

    Assuming that you buy this gloss on the 4th Amendment (which the courts so far have done), the key phrase is the scope of “to protect itself”. It’s one thing to say that this doctrine permits a sovereign to detect and destroy inbound nukes and prosecute their possessors, and quite another to say that it permits a sovereign to detect pirated songs and prosecute their possessors.

    Authorized by the First Congress, the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.”

    If courts applied similar reasoning to speech, they’d hold that the 1st Amendment doesn’t protect criticism of the government, because the Congress passed the Alien and Sedition Acts in 1798, just 7 years after the Bill of Rights was ratified.

  87. 87
    cleek says:

    @Don: i stand corrected.

  88. 88
    arguingwithsignposts says:

    I should also add that I don’t really have that much of a problem with border searches of electronic equipment, any more than I have problems with border searches of cars, clothing, or other items – with suspicion or without.

    I don’t mind random searches, per se, although I doubt a lot of them are truly “random.”

  89. 89
    arguingwithsignposts says:

    @Tonal Crow:

    To point 1 – I am not sure this is discussing “pirated music,” since most pirated music actually gets downloaded through the Internet, and nobody crosses a physical border to do so.

    To point 2 – this is a straw man argument. Border searches are nowhere near the equivalent of political speech that occurs within the border.

    “If courts applied similar reasoning to speech” – but they didn’t, and they don’t, and the 1st and 4th amendments are separate entities.

  90. 90
    Rand Careaga says:

    U.S. Customs (or “U.S. Customs and Border Protection” as it has been rather inelegantly renamed and reconfigured since 2003) has pretty much always had few restrictions on its search powers. Back in the last century a Customs official one remarked to me (I should mention that my professional life brings me into regular contact with the agency) that “you never have fewer rights than when you’re clearing Customs.” Come to think of it, wasn’t that a golden age when that statement was more-or-less true. My point here is that the Obama Administration is not breaking new ground here, and is not even shoring up some odious Cheney Shogunate initiative: it is merely reasserting a Customs practice of long standing and applying it to digital and electronic media. I don’t like it either, and the potential for abuse has been amply noted above, but it’s nothing I think the administration is to be faulted for leaving in place.

    Incidentally, if memory serves it was public hysteria about child pornography that got Customs enlisted in this kind of digital snooping in the nineties. Let’s remember that whenever we designate some social ill as a scourge to be addressed by the authorities, the authorities will tend, out of sheer bureaucratic thoroughness, to run with the powers granted or enlarged.

  91. 91
    paradox says:

    I fucking knew it existed under Bush.

    Just where is this sacred screed of exception in the 4th amendment to the border? Well?

    Fucking nowhere, that’s where. Case law? Cite it then. Y’all want to babble away our freedoms then at least do it intelligently.

    I think the way the sickening wussy lemmings take it on this thread is nauseating. What cheesy little goose-stepper motherfuckers y’all are, Lady Liberty lifts a hip to piss on your authoritarian-worshiping asswipe souls, gawd. They’d take your clothes for thirty days and you’d defend that too, I’d wager, so many fine Americans on this thread.

  92. 92
    kay says:

    @arguingwithsignposts:

    Well, you have severely restricted 4th amendment rights at the border “zone”, and that’s long-standing law in the U.S.
    Still, John’s point is valid because the standard was “reasonable suspicion” and that’s no longer true.
    They chip away at search and seizure. They don’t act in one fell swoop. There are (I think) 19 recognized exceptions to the 4th amendment protections.
    Chip-chip-chip. There isn’t much of it left. I’m always amazed at what flies. I was amazed when random stops for drunk driving passed muster, so I seem to be a rabid civil libertarian, compared to most Americans, and most judges.

  93. 93
    Cain says:

    @Fulcanelli:

    I’m hoping there’s at least a possibility that Obama’s keeping many of Bush’s security policies in place and spy apparatus violations tamped down to keep his right wing opposition from howling about leaving the country vulnerable to attack while he’s trying to get aspects of his domestic agenda done.

    And then there’s the torture/war crimes investigation issue which is starting to heat up which has political napalm written all over it….

    It’s not like we got his back or anything if he goes out on a limb. We’ll just cry in our cups wondering why he didn’t do it our way. He doesn’t have the press on his side and he’s got a right wing so ginned up that they want his blood even for the minute infraction. Yeah, it’s great to be the prez.

    We should keep the pressure on Obama, I agree and he welcomes it. But people’s attitude troubles me. Say what you will about right wing noise machine. But we apparently don’t have our own noise machine, we do nothing. We get the government we deserve as a reflection of the public. When the public attitude change the government is going to get better.

    cain

  94. 94
    Comrade Dread says:

    (Does this rule apply to US citizens?)

    Yes.

    And it is outrageous that on suspicion of nothing, I as a US citizen can have my personal computer pried into and held for months while Feds comb through my personal files and family photos.

  95. 95
    Tonal Crow says:

    To repeat an important point, probably the most effective thing you can do to repel the totalitarian tide is to donate generously to the ACLU. Day in and day out, from freedom of speech, to protection from warrantless and unjustified searches and seizures, to improving police practices, the ACLU is in the forefront. Please help them help you.

  96. 96
    Corner Stone says:

    C’mon guys! Don’t you see what Obama is doing here?
    He’s very quietly rolling back the Executive Branch overreach of past Presidents! By keeping these policies in place, and by sometimes actually arguing them in court and making the case to strengthen them, he is really telling Congress, “Hey you lap dogs! Get off your butts and change the laws! I can’t just repeal or revise the Bush-era transgressions or the Righties would fry me for it in the press. Time for you to work a little.”
    So it’s obvious his take on these odious policies is that by leaving them en force he is actually doing away with them! He doesn’t want anything to do with these policies but hey, how else could he approach the thorny issues?

    /giggle

    The next person I see post this kind of trope is going to make me start punching grandmas in the neck. And I won’t stop until I find theirs.

  97. 97
    Seanly says:

    I apologize if this was mentioned upthread, but wouldn’t the recent ruling from the 8th Circuit Court of Appeals kinda contradict this? Me smells Supreme Court future case…

  98. 98
    joes527 says:

    @arguingwithsignposts: OK. That is kind of disconnected from reality.

    Maybe that would work for James Bond who needs to keep the neutron bomb plans to himself, but as a normal business traveller, My laptop is my office. If it doesn’t have my stuff on it, then it is a doorstop. If my laptop isn’t fully loaded/configured so that I can work on the plane, then I won’t even be ready when I arrive.

    I’m not afraid of border agents seeing anything I have. Sure I have lots of company confidential stuff on the laptop, but it is just that, confidential, not top secret.

    However if a border agent decided to take my laptop as I left the country (with a promise to return it in 5 – 30 days) then there would be no point in my continuing on the trip. I would just turn around and go home at that point, since it would make as much sense for me to sit there until my office was returned to me as it would to be abroad. In either case I’m totally out of the water at least ’till I can get a replacement laptop and restore my stuff onto it. For most of my trips this would take longer than the trip.

    So .. then what would happen:

    me: I’m leaving the country

    border agent: we’re taking your laptop

    me: OK, then I’m not leaving the country

    border agent:

  99. 99
    Tonal Crow says:

    @arguingwithsignposts:

    To point 1 – I am not sure this is discussing “pirated music,” since most pirated music actually gets downloaded through the Internet, and nobody crosses a physical border to do so.

    Pirated music is just one of many kinds of contraband that a suspicionless border search can discover, and that can lead to the possessor’s prosecution. BTW, much of the world, especially China, is awash in pirated IP, and I’m sure that many people return from such places possessing the same, intentionally or not.

    To point 2 – this is a straw man argument. Border searches are nowhere near the equivalent of political speech that occurs within the border. “If courts applied similar reasoning to speech” – but they didn’t, and they don’t, and the 1st and 4th amendments are separate entities.

    You have not shown why an early Congress’s gloss on the 4th Amendment’s application to border searches is definitive, but a different early Congress’s gloss on the 1st Amendment’s application to criticism of the government is not.

  100. 100
    peach flavored shampoo says:

    while Feds comb through my personal files and family photos.

    God help you if you have pictures of your 3-year old naked in the bathtub.

  101. 101
    Seanly says:

    Oops, make that 9th circuit…

    and I realize laptops can still be searched, but didn’t they put limits on both the justifications as well as limits to the searches?

  102. 102
    kay says:

    @Tonal Crow:

    It’s more complicated than that. The “person” is still protected by the “reasonable” requirement at the border. The “property” is not.
    They use the same elaborate distinctions and qualifiers for automobile searches, and it evolves, but. always in the wrong direction, in my lifetime, anyway.

  103. 103
    BFR says:

    You have not shown why an early Congress’s gloss on the 4th Amendment’s application to border searches is definitive, but a different early Congress’s gloss on the 1st Amendment’s application to criticism of the government is not.

    One precedent was discarded and the other was built up over time.

  104. 104
    Shawn in ShowMe says:

    @arguingwithsignposts:

    I just find it peculiar that when the original policy was put in place, the Washington Post had nothing to say. But when Obama’s administration tones down the policy, WaPO gives it the in-depth treatment.

  105. 105

    For once I am in agreement with Mr. Cole. This is, was, and always shall be outrageous. It is a clear violation of the 4th Amendment. I never let TSA or Customs into my personal electronics. The key is be polite but even more officious than they are. Start to call a lawyer of reporter if the get rude. Another good tactic is if they try to get you out of the line to back room you cause a scene, remain respectful or they will arrest you, but do not let yourself be forced to accept tyranny and rights violations

  106. 106
    Tonal Crow says:

    @BFR:

    You have not shown why an early Congress’s gloss on the 4th Amendment’s application to border searches is definitive, but a different early Congress’s gloss on the 1st Amendment’s application to criticism of the government is not.

    One precedent was discarded and the other was built up over time.

    True enough, but that shows that the “early Congress” argument is, itself, hollow.

  107. 107
    BFR says:

    True enough, but that shows that the “early Congress” argument is, itself, hollow.

    I can’t speak for anyone else, but my point wasn’t that it was a good reg because it was old, just that there’s nothing at all “new” with the Bush guidelines for electronic equipment.

    The administration is basically upholding a (really) longstanding policy. Revoking the Bush rules would have been a pretty radical step.

    I’m basically ambivalent about the policy itself – I don’t think the concept of a warrant makes any sense in the border security context, so that’s always going to leave you with warrantless searches.

    That leaves the question of whether or not the search is suspicion-based or random. From a practical perspective, since there’s no oversight, I don’t think the distinction matters.

  108. 108
    catclub says:

    joes527@95

    You do realize that border inspections are made as you COME into
    the US? Not as you leave to go abroad.

  109. 109
    RememberNovember says:

    Along with the ACLU, add support to the EFF. They are the internet equivalent.

  110. 110
    joes527 says:

    @catclub: Good point. I was confusing the different levels of security.

    So that means I (as a USAsian) don’t have this problem, but anyone entering the USA from another country for business might.

    That said, I find it interesting that the most hassle I (as a US passport holder) have ever gotten entering a country have been with the US and Canada, but that is OT.

  111. 111
    Tonal Crow says:

    @BFR:
    The administration is basically upholding a (really) longstanding policy. Revoking the Bush rules would have been a pretty radical step.
    What was radical, I submit, was mindlessly extending the rules for searches of physical objects to searches of electronic ones. While I believe that Obama would get heavy criticism for repealing the policy, that’s exactly what he should do.

    I’m basically ambivalent about the policy itself – I don’t think the concept of a warrant makes any sense in the border security context, so that’s always going to leave you with warrantless searches. That leaves the question of whether or not the search is suspicion-based or random. From a practical perspective, since there’s no oversight, I don’t think the distinction matters.
    Leaving aside, for the moment, whether there should be a warrant requirement at the border, the remaining issues are broader than your second question. The government has a strong interest in preventing, say, a terrorist’s nuke from entering the country. It has a much (much) weaker interest in preventing someone from bringing pirated songs (or illegal pr0n) into the country. But the privacy intrusion required to detect the nuke is, paradoxically, likely to be substantially less than that required to detect the songs or the pr0n. Both from a safety viewpoint, and from the viewpoint of protecting the principles that underlie the 4th Amendment (if not the Amendment itself), it seems that we should concentrate on the nuke. If the courts won’t make this distinction, the Congress should. It’s about time those retrogrades stopped circumscribing Liberty and began expanding it.

  112. 112
    Calouste says:

    All those people going on about the 4th Amendment: the point is you are at the border, NOT in the country. The only explicitly enumerated right you have is your eventual return to the country as a US citizen. Non-citizens can be denied entry at the border and send back to the country they came from even when all their paperwork is in order and they don’t even have the right to an attroney.

  113. 113
    arguingwithsignposts says:

    @joes527:

    Not really. Unless you’re using some sort of highly specialized software. Even then, you can download and upload files to a cloud-based system like dropbox. Like someone said, Customs is when you’re entering the US from another territory. I went to canada, there was no US customs agent to send me off.

  114. 114
    BFR says:

    @Tonal Crow

    But the privacy intrusion required to detect the nuke is, paradoxically, likely to be substantially less than that required to detect the songs or the pr0n.

    Ok, but it’s not just about nukes – if we’re going into hypotheticals, you could have someone sneaking bio/chemical weapons into the country the same way cocaine is smuggled in.

    Along with smuggling, that’s why you generally want border security to be pretty unfettered.

  115. 115
    arguingwithsignposts says:

    @Tonal Crow:

    You have not shown why an early Congress’s gloss on the 4th Amendment’s application to border searches is definitive, but a different early Congress’s gloss on the 1st Amendment’s application to criticism of the government is not.

    Actually, the thing that really matters is the Supreme Court’s “gloss” on the amendments. Alien and Sedition was allowed to lapse. The sedition act never saw judicial review. And prior to the 1920s/30s, the First Amendment was much more circumscribed than it is today.

  116. 116
    arguingwithsignposts says:

    To bring the point to specifics, we should ask exactly what types of materials customs agents would find on a laptop, etc. that would be worth searching said laptop. I read that child pr0n would be one thing. Others?

    I really doubt the customs service is going to be so gung-ho about pirated music, especially if they are mp3s. it would take a lot to prove they were pirated and not bought.

  117. 117
    Tonal Crow says:

    @BFR:

    But the privacy intrusion required to detect the nuke is, paradoxically, likely to be substantially less than that required to detect the songs or the pr0n.

    Ok, but it’s not just about nukes – if we’re going into hypotheticals, you could have someone sneaking bio/chemical weapons into the country the same way cocaine is smuggled in. Along with smuggling, that’s why you generally want border security to be pretty unfettered.

    Those examples don’t substantially change the analysis; small WMDs are still physical objects. Again putting aside proper interpretation of the 4th Amendment, my problem with the electronic searches is (1) except possibly in some exceedingly contrived situation, they don’t confer anywhere near the security that existing physical searches confer; and (2) they usually (except in the case of body-cavity searches) involve substantially greater intrusions on privacy. Because of (1), electronic searches are much less justified than physical searches, and because of (2), the privacy arguments against them are stronger.

  118. 118
    Tonal Crow says:

    Also on electronic searches, electronic devices have become nearly indispensable assistants for many people. In perhaps another 20 years, they will become nearly as important to effective cognition as our own brains. At some point, it seems likely that electronic searches will take on the character of thought examinations, and prosecutions based upon them the character of thought crime prosecutions.

    No doubt SciFi authors have examined this issue from multiple angles. Maybe our representatives (and us) need to partake of some of their imagination.

  119. 119
    joes527 says:

    @arguingwithsignposts: OK yeah I get that I was smearing customs and TSA together and that they are actually SEPARATE anal probes. Got it. You are right.

    As far as putting everything I own on a cloud, 2 problems.

    1) Anyone who thinks that Google will protect your data from the Feds must be smoking some really good shit.

    2) The amount of stuff I keep on my laptop would be unmanageable on the cloud. I would have to leave it there an access it remotely, which means I get NO access on planes, in cabs and in hotel rooms with shitty/no network access. Uploading my HD before I go through customs and downloading it after is not going to work.

    Like I said. I really don’t care about the feds seeing the data on my laptop. They can work on the backlog in my inbox while they are at it. TAKING my laptop (even for 5 days) is a completely different story.

    Maybe James Bond has a reason to use this technique, though he wouldn’t be stupid enough to host his secret secrets on a third part server. Your average business traveller? Not so much.

  120. 120
    BFR says:

    Because of (1), electronic searches are much less justified than physical searches, and because of (2), the privacy arguments against them are stronger.

    Ok, I don’t disagree with this – but the policy doesn’t state that electronic searches MUST be performed, just that the government MAY conduct them if they see fit.

    Since there’s no other authority in the matter (judges and congress don’t have jurisdiction over someone who is not inside of US territory), border control is always going to have fairly sweeping powers to search whatever they want. I don’t think it matters much whether this power is expressed explicitly or implicitly.

    Put another way, if you’re acting sketchy at an airport with a laptop, then they’re going to search your stuff whether or not the policy is explicit.

  121. 121
    BFR says:

    At some point, it seems likely that electronic searches will take on the character of thought examinations, and prosecutions based upon them the character of thought crime prosecutions.

    Maybe so, but customs/border control have always had the authority to search your physical documents. I suspect that this would include personal journals/diaries, so I’m not sure how this changes anything.

  122. 122
    someguy says:

    Still, pre-Bush the standard according to the WaPo was reasonable suspicion, which seems reasonable enough to me.

    Categorically untrue. Border searches have always been “suspicionless” (meaning no probable cause is needed to search) until you start talking about a serious detention or highly intrusive search of the person. Those typically require something more like an “articulable” suspicion – not a reasonable one but something the agent can say to justify it. I understand they do about a thousand laptop searches per year. Based on what I’ve seen of civil litigation in unrelated contexts, they probably can’t do a lot more than that due to manpower constraints.

    Feingold is working on putting a warrant requirement in place, which will likely make the laptop searches pretty much impossible – when a person rolls up on the border, the feds really don’t have an ability to mount a big investigation and develop probable cause to support a warrant in the minute or so they take to speak with that person. But I wouldn’t have a problem with that. It’s worth putting up with a certain amount of terrorism, child pr@n and financial fraud in order to preserve (or in this case expand) our civil liberties.

  123. 123
    Tonal Crow says:

    @BFR:

    …but the policy doesn’t state that electronic searches MUST be performed, just that the government MAY conduct them if they see fit. Since there’s no other authority in the matter (judges and congress don’t have jurisdiction over someone who is not inside of US territory)….

    This is incorrect, at least with respect to jurisdiction over agents of the executive branch. Boumediene v. Bush held so re: habeas for Gitmo detainees. BTW, if the executive has global reach, what Constitutional provision operates to limit the legislature and the judiciary at the water’s edge?

  124. 124
    Tonal Crow says:

    @BFR:

    At some point, it seems likely that electronic searches will take on the character of thought examinations, and prosecutions based upon them the character of thought crime prosecutions.

    Maybe so, but customs/border control have always had the authority to search your physical documents. I suspect that this would include personal journals/diaries, so I’m not sure how this changes anything.

    Before electronic devices, only the occasional traveller carried something (other than their brains) that personal through customs. Now most people do, and soon everyone will. If we’re attempting to balance safety and Liberty, then this changes everything. But if we’re wholeheartedly violating Franklin’s admonition, then you’re right: it doesn’t matter.

  125. 125
    The Other Steve says:

    I’m hard pressed to call this a bad policy.

    Border Patrol can search your bags, your person. Why can’t they also search a computer?

    Sorry, I’m going to have to call you DFH on this one.

  126. 126
    BFR says:

    BTW, if the executive has global reach, what Constitutional provision operates to limit the legislature and the judiciary at the water’s edge?

    None that I know of. But the border agents report up through the executive branch and they have authority to deny access to the country based on suspicions.

  127. 127
    Bruce (formerly Steve S.) says:

    “What cheesy little goose-stepper motherfuckers y’all are,”

    Whoa. They are NOT cheesy.

  128. 128
    Bruce (formerly Steve S.) says:

    “Obama is a disingenuous, hypocritical, triangulating, scheming, cold hearted, cynical, and bloody handed politician who nevertheless may wind up being one of the best presidents this country has ever had, simply because every single American president was a monster who oppressed and killed innocent people, with virtually no exception”

    IIRC lefty journalist Alexander Cockburn considers Ford to have been the best recent President because he did the least amount of damage.

  129. 129
    Maude says:

    I traveled outside of the US in the late 1960’s.
    It was made clear that Customs had the power to search anything. Britain was more strict than the US.
    This isn’t new, but what is new is the expansion of oversight.
    @Vince CA:
    Tell them it’s a suburb of London.
    @paradox:
    Hi there. The problem with your argument is that when you enter the country and go through Customs, you are not in the United States. There’s no “right” to come into the US.
    I argued with a German border guard because I wouldn’t allow him to take my passport. I won. That is one thing that I do know. No one ever touches the passport. I would hold onto it firmly for show and that’s it.
    Hope to argue with you in the future, Paradox.

  130. 130
    BFR says:

    I argued with a German border guard because I wouldn’t allow him to take my passport. I won. That is one thing that I do know. No one ever touches the passport. I would hold onto it firmly for show and that’s it.

    Maybe that’s because the passport is US government property. It’s issued for your use but it belongs to the State Dept, no?

  131. 131
    Corner Stone says:

    @Maude:

    This isn’t new, but what is new is the expansion of oversight.

    Yeah that’s true. I mean the oversight’s expanded. So we got that working for us.

  132. 132
    kormgar says:

    @liberal:

    I know…I was extremely impressed by his work in the Illinois state senate and even his first three years in the US Senate. But as president he’s been far worse even than that guy who voted in favor of telecom immunity.

    I never thought he would deliver on all of his promises to bring transparency and accountability to Washington, but I never dreamed that he would actually be worse in some respects than the Bush administration.

    I still support him…but the enthusiasm is gone.

  133. 133
    Tonal Crow says:

    @The Other Steve:

    I’m hard pressed to call this a bad policy. Border Patrol can search your bags, your person. Why can’t they also search a computer?

    And why not also your private parts, just because, you know, you might be hidin’ something there? How ’bout a DNA test, too, just in case you’re not who your docs say you are? Maybe an HIV test? Also? And, oh, don’t think of leaving until the results come in.

    Sorry, I’m going to have to call you DFH on this one.

    Us DFHs have been correct about government — and especially its forays into tyranny — far more often than we’ve been incorrect.

  134. 134
    Chad N Freude says:

    @Maude:

    No one ever touches the passport. I would hold onto it firmly for show and that’s it.

    Do you mean this literally? If you don’t hand it over, how do they stamp your entry/exit visas?

  135. 135

    @Rick Taylor

    Look at the good side. Perhaps the wingnuts may now rediscover the value of civil rights, rule of law, and limited government.

    Even if that happened they’d forget everything they learned as soon as a Republican became president again.

  136. 136
    Peter says:

    Are you going to vote for a third party? Not vote at all?

    Or are you going to line up and vote for Obama and the Democratic Party, despite the fact that they’ve continued and intensified all of the policies you so passionately claimed were destroying America just a few years ago?

    You’re going to vote for the Democrats. They know, I know it, and you know it. So shut up. They own you.

  137. 137
    AhabTRuler says:

    Do you mean this literally?

    Yeah, and the literal meaning of ‘literally’, not this new meaning that is so hip with the kids these days.

  138. 138
    Zhirem says:

    Isn’t it simply a matter of ‘papers and letters’ that the founding fathers wanted safe from unreasonable search and seizure?

    What is different here really? That the hand script of letters are now 1’s and 0’s?

    *boggle*

    – Zhirem

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