Searching laptops with or without reasonable cause is constitutional

[Master Shake]

Re: Searching laptops with or without reasonable cause is constitutional

We could be Canada and do this:

http://www.baitcar.com/

"A bait car is a vehicle owned by the police and is intended to be stolen."

I was somewhat disturbed by it, I can't exactly put my finger on what is wrong with this.

To paraphrase W.C. Fields, you can't entrap an honest man.

.

[ViC78]

Re: Searching laptops with or without reasonable cause is constitutional

What about this?

The government maintained that the search stemmed from an ongoing investigation of Verma for child pornography. Well before Verma was searched at the airport, the FBI had already linked his home IP address to an Internet Relay Chat server containing images of child pornography. Prosecutors said the airport search of Verma's computers stemmed from that investigation and from the fact that he was reentering the U.S. from a country that the U.S. considers to be at "high-risk' for child pornography.

Sounds like they had probable cause.

I think you may have missed the point. From the article linked by c1ue

In response to Verma's motion, U.S. District Court Judge Gary Miller ruled that the searches were constitutional with or even without reasonable cause or suspicion.

[globaleconomicollaps]

Re: Searching laptops with or without reasonable cause is constitutional

To paraphrase W.C. Fields, you can't entrap an honest man.

.

Years ago the Seattle police put a wallet with $500 in in in a phone booth at SEA-TAC. they then watched the booth and arrested anyone leaving with the wallet. You can indeed entrap an honest man. In fact I might argue that the more civic minded folks would get the shaft first in that case.

[Adeptus]

Re: Searching laptops with or without reasonable cause is constitutional

Searching laptops with or without reasonable cause is constitutional

TrueCrypt is your friend (and a free one at that).

TrueCrypt Hidden Operating System

If your system partition or system drive is encrypted using TrueCrypt, you need to enter your pre-boot authentication password in the TrueCrypt Boot Loader screen after you turn on or restart your computer. It may happen that you are forced by somebody to decrypt the operating system or to reveal the pre-boot authentication password. There are many situations where you cannot refuse to do so (for example, due to extortion). TrueCrypt allows you to create a hidden operating system whose existence will be impossible to prove (provided that certain guidelines are followed — see below). Thus, you will not have to decrypt or reveal the password for the hidden operating system.

Adeptus

[doom&gloom]

Re: Searching laptops with or without reasonable cause is constitutional

TrueCrypt is your friend (and a free one at that).



Adeptus

there is a part of me that wants to do this when I travel just for shits and grins, but the other part of my doesn't want the proctological if the Customs folks get all into my face.

I haveyet to be searched by US Customs coming ack from anywhere (and I leave the country a few times a year). Last time I properly declared I had been on a farm, and they were gonna test my shoes. Told the lady the shoes I wore on the farm I tossed (true) and that the ones on my feet had never seen anything but a hotel room and travle time. they blew off the test completely.

[c1ue]

Re: Searching laptops with or without reasonable cause is constitutional

I am rather surprised that people are unaware that the constitution takes over AFTER you step out of the customs area, not before.

I am not aware that the US Constitution states that it applies only to US citizens within the US' borders. Perhaps you can point this section out to me.

Secondly the 2nd Amendment specifically does not apply only to citizens within the borders of the United States:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To interpret search of computer hardware as being legal because it is non-destructive is bullshit.

To interpret the rights of citizens being different TO US AUTHORITIES simply because of said citizens being in or out of the United States is equally bullshit.

The reason torture was conducted by Turks and other nations is because of the legal rigmarole of said unconstitutional behavior at least being performed by those with no official relationship to the US.

In reality, knowing and abetting such a scheme should not be in any way different than carrying out said behavior.

If being an accessory to a crime is a criminal act, then so should being an accessory to a violation of constitutional rights be also a violation of constitutional rights.

[ggirod]

Re: Searching laptops with or without reasonable cause is constitutional

From wikipedia:

Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the "border-search" exception.[55] Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to U.S. Customs and Border Protection plenary search authority. However, searches that intrude upon a traveler's personal dignity and privacy interests, such as strip and body cavity searches, must be supported by "reasonable suspicion."[56] The U.S. Courts of Appeals for the Fourth and Ninth circuits have ruled that information on a traveler's electronic materials, including personal files on a laptop computer, may be searched at random, without suspicion.[57]

There is further discussion of the Border Search Exception in another Wikipedia article.

I think, and IANAL, the Fourth Amendment is best understood to apply in your house and to a much lesser extent in your car, and pretty much not at all at the border. While I might not agree with the law, that is what it seems to be and what it has been for the last forty years or more that I can remember. In the interests of staying out of trouble, I would be very circumspect when crossing any borders and would be sure not to be in possession of anything remotely like contraband. Just not worth it. Period.

[fallout]

Re: Searching laptops with or without reasonable cause is constitutional

I am rather surprised that people are unaware that the constitution takes over AFTER you step out of the customs area, not before. Before you get into the country you have precisely no rights and are subject to any search and seizure the government wants to do. The fact that the experience is not painful for many is a tribute to the restraint exercised by customs agents. If you show up with contraband, you can assume that it will be of interest to the people and you may suffer as a consequence. To do otherwise means that control of the border is impossible.

I think it is amazing how people get upset about border crossing rights. If you choose to smuggle, maybe you ought to figure you might get caught. If you have lots of cash to repatriate quietly or whatever you might expect to answer lots of questions if/when it is discovered. Ditto for kiddy porn. If I discovered my laptop was full of kiddy porn I would probably throw it overboard beyond the 12 mile limit rather than proudly carry it through customs. I would not even trust my ability to erase it onboard a cruise line such that customs could not find traces. Just wait for customs to announce an exception to the password decisions.... Remember, they don't have to let you out of the customs holding area until THEY decide you leave. I will bet their patience waiting for your password exceeds your tolerance for bad coffee, machine sandwiches until your money runs out, uncomfortable chairs, and muzak, not to mention lack of sleep. Maybe you would get a plea bargain. Do you feel lucky? Well, do ya?

When did gross stupidity become cause to evade the law?

That makes absolutely no sense at all, sir. If the laws of a nation (including Constitutionally mandated ones) DO NOT APPLY until after you clear customs, then under what right do they conduct the search, or charge the "victim" in the first place? An area of anarchy within a nation's borders, not subject to laws? I call jurisprudence bullsh*t.

[fallout]

Re: Searching laptops with or without reasonable cause is constitutional

I am not aware that the US Constitution states that it applies only to US citizens within the US' borders. Perhaps you can point this section out to me.

To interpret search of computer hardware as being legal because it is non-destructive is bullshit.

To interpret the rights of citizens being different TO US AUTHORITIES simply because of said citizens being in or out of the United States is equally bullshit.

The reason torture was conducted by Turks and other nations is because of the legal rigmarole of said unconstitutional behavior at least being performed by those with no official relationship to the US.

In reality, knowing and abetting such a scheme should not be in any way different than carrying out said behavior.

If being an accessory to a crime is a criminal act, then so should being an accessory to a violation of constitutional rights be also a violation of constitutional rights.

Well said.

[vinoveri]

Re: Searching laptops with or without reasonable cause is constitutional

I am not aware that the US Constitution states that it applies only to US citizens within the US' borders. Perhaps you can point this section out to me.

14th amendment is applicable regarding jurisdiction question ...

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Can't help myself here ... the 14th amendment, while the celebrated pinnacle of articulate freedom to many, has had a number of quite odious effectd IMO, mostly the absolut power of the Fed gov over the state governments ....

If the transfer of power to the Federal government away from the States could be more obvious, I don't know how ...

are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

So in one fell swoop, stipulate that everyone is a citizen of the US (the constitution only referred to citizens of a particular State up to this point, and this is the first definition of "citizen of the US"), and then transfer all authority to the United States over the states.

small wonder that this amendment was ratified before the southern states which had seceded were readmitted to the union (no way 3/4 of the states would have ratified the amendment) ;)

[ggirod]

Re: Searching laptops with or without reasonable cause is constitutional

That makes absolutely no sense at all, sir. If the laws of a nation (including Constitutionally mandated ones) DO NOT APPLY until after you clear customs, then under what right do they conduct the search, or charge the "victim" in the first place? An area of anarchy within a nation's borders, not subject to laws? I call jurisprudence bullsh*t.

I apologize for a lack of clarity. I did not mean there were no laws in the customs area, just that the constitutional protections are not necessarily applicable there. Absent certainty otherwise, it is prudent to assume that in customs you have few if any rights, are being probed and inspected, and if accepted you will get through. If not, you could be in a heap of hurt.

In fact, many transportation hubs have extended areas wherein incoming goods are sequestered pending inspection. These areas are carved out of airports and other transportation hubs. If, indeed, the goods are not accepted, then they can be assumed never to have entered the US and can be shipped elsewhere unless they are specifically to be confiscated for some reason. So, the operations of the customs service and its laws are not governed by the constitution in the same ways that it might be applied in other areas.

From Findlaw:

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.'' 87 Authorized by the First Congress, 88 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. 89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 90 Terry protections as to the length and intrusiveness of the search do not apply. 91

Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States, 92 the Court held that a warrantless stop and search of defendant's automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent. 93 On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are ''aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion'' that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is ''modest'' and the law enforcement interests served are significant. 94 Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens. 95

Just to clarify that this was not Obama's idea, footnote 88 is quoted below.

[Footnote 88] Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.

But, all of the above said, more recent laws have further changed the Border Patrol powers. As this article (Newsbrief: Border Patrol Begins Random Stops in Michigan 11/15/02) points out ...

It's a brave new world for Michigan this week as the Upper Midwest gets a taste of tactics long familiar to denizens of the southern border. Beginning Tuesday, federal agents began randomly stopping traffic, looking for illegal immigrants, terrorists, drugs and weapons. They can do so under a federal law that allows the government to turn any part of the country within 25 miles of a foreign border into a Fourth Amendment-free zone.

The first internal checkpoints were set up near Port Huron and Trenton on Tuesday, Immigration and Naturalization Service (INS) officials announced at a same day news conference. Although metropolitan Detroit falls within the 25-mile free zone, it is off limits for now because of concerns about traffic disruptions. There will be no racial profiling, officials said -- everyone will be stopped. "It's all about homeland security. Bottom line, we are here to be vigilant about the safety and security of the American people," said INS spokesman Greg Palmore.

But American people who happen to use the wrong substances should be concerned about their personal safety and security. "Those checkpoints would yield quite a few arrests," veteran Detroit Border Patrol agent Robert Lindemann, who worked similar checkpoints near the Mexican border, told the Detroit Free Press. "We got drugs, we got aliens, we got convicts. The checkpoints on the southwest border are critical."

They may be critical, but in the southwest they are often bypassed. For immigrants and contrabandistas alike, the checkpoints constitute a "second border," a more or less permanent feature on the landscape. Most often, they signify another 25 miles of walking through the desert or driving back roads to get around them.

Note the year on the article. It was already in effect in 2002.

[don]

Re: Searching laptops with or without reasonable cause is constitutional

April 15, 2010
Former N.S.A. Official Is Indicted in Leak Case

By SCOTT SHANE

WASHINGTON — In a highly unusual legal action against an alleged leaker of government secrets, a federal grand jury on Thursday indicted a former senior National Security Agency official on charges of providing classified information to a newspaper reporter in hundreds of e-mail messages in 2006 and 2007.

The official, Thomas A. Drake, 52, was also accused of obstructing justice by shredding documents, deleting computer records and lying to investigators who were looking into the reporter’s sources.

“Our national security demands that the sort of conduct alleged here — violating the government’s trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously,” Lanny A. Breuer, the assistant attorney general in charge of the Justice Department’s criminal division, said in a statement.

The F.B.I. executive assistant director in charge of national security, Arthur M. Cummings II, said the bureau would continue to aggressively pursue such leak investigations.

But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a press advocacy group, called the indictment “unfortunate.”

“The whole point of the prosecution is to have a chilling effect on reporters and sources, and it will,” she said.

The indictment does not name either the reporter who received the information or the newspaper, but the description fits articles written by Siobhan Gorman, then a reporter for The Baltimore Sun, that examined in detail the failings of several major N.S.A. modernization programs and problems with supplying its huge electric power demands. Some of her articles were honored with a top prize from the Society for Professional Journalists.

The N.S.A., which monitors phone calls, e-mail messages and other electronic communications, had spent hundreds of millions of dollars to update its systems to collect and sort the huge amount of data it was collecting. The modernization programs were plagued with technical failures and cost overruns, and Ms. Gorman, who now works for The Wall Street Journal, was the reporter who most aggressively covered the problems.

Ms. Gorman, who has not been charged with wrongdoing, could not immediately be reached for comment.

The Baltimore Sun articles that appear to be referred to in the indictment dealt with mismanagement and did not generally focus on the most highly protected N.S.A. secrets — whose communications it focuses on and what countries government and military codes it has broken.

That may make a prosecution more feasible, from the point of view of protecting secrets during a trial. But because the articles in question documented government failures and weaknesses, the prosecution could raise questions about whether the government is merely moving to protect itself from public scrutiny.

If Ms. Gorman’s articles were indeed those involved in the case, Ms. Dalglish said, they exposed “a multibillion-dollar boondoggle that was of great interest to Congress.” She called the articles “important public-interest reporting.”

Mr. Drake, a high-ranking N.S.A. official from 2001 to 2008, is charged with 10 counts, including retention of classified information, obstruction of justice and making false statements. The retention counts each carry a maximum penalty of 10 years in prison and a $250,000 fine.

Only a handful of prosecutions have been brought against government officials in recent decades for leaking information, and such cases often provoke a public debate over the tradeoff between protecting government secrets and covering up government wrongdoing or incompetence.

The Justice Department spent several years investigating leaks to The New York Times after the newspaper disclosed in December 2005 the existence of the Bush administration’s warrantless eavesdropping program, run by the N.S.A. No government official was charged in that case.

News reports based on classified information are common, and they are often followed by a referral of the leak by the intelligence agency to the Justice Department for investigation. But prosecutions remain rare, in part because of the difficulty of identifying leakers and in part because spy agencies often fear a trial will do more damage to national security than the original leak.

http://www.nytimes.com/2010/04/16/us/16indict.html?hp

[c1ue]

Re: Searching laptops with or without reasonable cause is constitutional

14th amendment is applicable regarding jurisdiction question ...

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It is a good point, but I would point out that the 14th amendment is a definition of the relationship between US citizen, federal jurisdiction, and state jurisdiction.

It does not speak in any way concerning the constitutional rights of citizens or where said rights end.

I challenge you to find a section in the Constitution which notes that the rights extended to citizens under the Constitution are limited in any way by a jurisdiction - either a state border/state law or an international one, at least with respect to the United States government.

I apologize for a lack of clarity. I did not mean there were no laws in the customs area, just that the constitutional protections are not necessarily applicable there. Absent certainty otherwise, it is prudent to assume that in customs you have few if any rights, are being probed and inspected, and if accepted you will get through. If not, you could be in a heap of hurt.

In fact, many transportation hubs have extended areas wherein incoming goods are sequestered pending inspection. These areas are carved out of airports and other transportation hubs. If, indeed, the goods are not accepted, then they can be assumed never to have entered the US and can be shipped elsewhere unless they are specifically to be confiscated for some reason. So, the operations of the customs service and its laws are not governed by the constitution in the same ways that it might be applied in other areas.

The fact that a practice is common does not make it constitutional.

Furthermore while X-rays of baggage in the interest of security is understandable, a specific search of a person and or personal property without probable cause is not. How exactly can a data bits on a laptop threaten the safety of fellow passengers, airline employees and airline equipment?

Note that I am not saying that searches are unreasonable under any circumstance - I am saying that using the pretext of customs inspections or security to delve into an individual's privacy is completely unconstitutional.

Just as the old canard of 'evidence thrown out due to improper providence' was used to remove any need for evidence for DUI convictions, so too is the same approach being used to justify pretty much any behavior by various law enforcement officials.

And while said behavior may have begun prior to Obama, Obama is the first President in recent memory to specifically call out rule of law as a campaign platform.

And has failed to carry through with said lofty talk.

[Master Shake]

Re: Searching laptops with or without reasonable cause is constitutional

Years ago the Seattle police put a wallet with $500 in in in a phone booth at SEA-TAC. they then watched the booth and arrested anyone leaving with the wallet. You can indeed entrap an honest man. In fact I might argue that the more civic minded folks would get the shaft first in that case.

No crime was committed in this example. Sounds apocryphal to boot.

You cannot entrap an honest man.

[ggirod]

Re: Searching laptops with or without reasonable cause is constitutional

From C1ue:

The fact that a practice is common does not make it constitutional.

How about the fact that it was passed as a law 221 years ago in 1789? Does that give it any legitimacy? Usually the strict interpretations of the Constitution go back to roughly the same time frame and try to show inconsistency. So let's explore that approach... Now, are you trying to say that this law, introduced in Congress the same time as the Bill of Rights, in 1789, was somehow carelessly inconsistent with "the Constitution" even in the same year? Are you saying those same poor suckers who came up with the Second Amendment and the Tenth, and all the others before and in between slipped up and carelessly breached the Fourth Amendment? I, and 221 years of the Supreme Court think not. Maybe, just maybe, their intent was clear.

Instead of questioning the 221 year legal basis of what happens in border check points, please, instead, consider the important question of what happens up to 25 miles inside the border, which the Wonderful Conservative Republican GW Bush made sure would happen by his exploitation of proletarian fear after 9/11 in the pursuit of continued power. It worked, he didn't need the Supremes to intervene again in 2004. Wonderful.

I have observed that those who most strongly believe in Absolute Truth often also most strongly believe that they alone possess it. Interesting correlation, huh? No cause and effect noted, just correlation... It is they, rather than the intellectuals and scientists who routinely question and challenge their certainty, who are the greatest threat to our rights. Absolutely the greatest threat.

And, to compact this reply, the following quote from c1ue is provided and discussed with support...

I am saying that using the pretext of customs inspections or security to delve into an individual's privacy is completely unconstitutional.

By the way, this quote is an oldie but goodie from Findlaw ...

Authorized by the First Congress, 88 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.

For your homework tonight please show how this 1789 law requiring no restrictions whatsoever on search in border situations and passed the same year as the Bill of Rights can reasonably be ignored.