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

[David Farber <dave@farber.net>]

________________________________________
From: Robert Atkinson [rca53@columbia.edu]
Sent: Sunday, August 03, 2008 9:17 AM
To: David Farber; Ip
Subject: Re: [IP] Re:   Peter Swire: No, You Can't Search My Laptop

Dave,

Doesn't this all boil down to whether a laptop search is more like searching
luggage and briefcases (for which no probable cause or even suspicion is
required for the non-warranted border search) or more like the very personal
and intrusive "body cavity" search (for which some reasonable suspicion is
required)?  Thus far, the courts seem to have regarded a laptop as simply a
high-tech briefcase.

So, for those IPers who are aghast at the current situation, what is the
best argument for distinguishing a laptop from a briefcase or luggage and
the best argument that a laptop is so "personal" that a search of a laptop
is similar to a body cavity search? (And is there is valid difference
between a "business" laptop(more like a briefcase?) and a "personal" laptop
(more like a body cavity?) and how would Customs be able to distinguish
between them without looking inside?)

Unless and until a statute confers some other status on laptops and other
electronic devices, laptops will fall within the existing law and precedent
which means "don't put anything on a laptop that you wouldn't put in a
briefcase."

Bob



On 8/2/08 3:22 PM, "David Farber" <dave@farber.net> wrote:

>
> ________________________________________
> From: Peter Swire [peter@peterswire.net]
> Sent: Saturday, August 02, 2008 2:41 PM
> To: David Farber; ip
> Subject: RE:    [IP] Peter Swire: No, You Can't Search My Laptop
>
> Jeff Nye asked three questions following up on my laptop testimony.  Here are
> some possible answers:
>
> (1)  Would some intrepid American be willing to test this in the
> spirit of John Gilmore?  It could provide a test case for the courts.
>
> A: John Gilmore could choose his moment for testing the law, by going to the
> airport when he knew that he would be asked for ID.  Given the random (or
> unknown pattern) of laptop/PDA searches at the border, no one traveler can
> decide to be the test case.
>
> That said, we could imagine readers of this list, or anyone else, deciding to
> challenge the law if and when a search is made.  The person doing the
> challenge, though, better be ready for a bigger hassle than simply being told
> he or she can't fly that day.  Instead, there may be denial of the ability to
> enter the U.S. or perhaps other significant consequences.
>
> (2)  It's easy to create a situation where a traveler doesn't know
> encryption keys.  Example:  Instruct a trusted assistant to (a)
> generate  keys, (b) use them to encrypt your laptop, and (c) divulge
> the keys only when you contact him from your destination.  What
> happens when you try to enter the United States with your laptop?
>
> A: The way the policy exists, I think Customs and Border Patrol might take the
> position that you will be denied entry into the U.S. until and unless you open
> the electronic device.  Maybe, on their view, you get put in a holding pen
> until the owner of the key reveals the key.
>
> (3)  If your laptop contains evidence that you have committed some
> small crime (for example, speeding), what happens if you invoke the
> Fifth Amendment when asked for your keys?
>
> A.  This question gets into the broad scope of what the laptop search policy
> addressed: "For example, examinations of documents and electronic devices are
> a crucial tool for detecting information concerning terrorism, narcotics
> smuggling, and other national security matters; alien admissibility;
> contraband including child pornography, monetary instruments, and information
> in violation of copyright or trademark laws; and evidence of embargo
> violations or other import or export control laws."
>
> The policy specifically allows government action for any "unlawful activity":
> "When officers determine there is probable cause of unlawful activity-based on
> a review of information in documents or electronic devices encountered at the
> border or on other facts and circumstances-they may seize and retain the
> originals and/or copies of relevant documents or devices, as authorized by
> law."
>
> At a minimum, then, the policy allows the government to keep or copy the
> device it finds probable cause of any unlawful activity at all.
>
> My thoughts on the new laptop policy:
> http://thinkprogress.org/2008/08/01/hands-off-laptops/
>
> Peter
>
>
> Prof. Peter P. Swire
> C. William O'Neil Professor of Law
>    Moritz College of Law
>    The Ohio State University
> Senior Fellow, Center for American Progress
> (240) 994-4142, www.peterswire.net
>
>
> -----Original Message-----
> From: David Farber [mailto:dave@farber.net]
> Sent: Saturday, August 02, 2008 12:48 PM
> To: ip
> Subject: Re: [IP] Peter Swire: No, You Can't Search My Laptop
>
>
> ________________________________________
> From: Jeff Nye [jpn213@gmail.com]
> Sent: Saturday, August 02, 2008 9:41 AM
> To: David Farber
> Subject: FIXED TYPO Re: [IP] Peter Swire: No, You Can't Search My Laptop
>
> In his testimony, Prof. Swire writes:
>
> "... individuals are told, in addition, that they have to provide the
> government their passwords and
> encryption keys in order for the government to able to read the files
> in the computer. Failure to
> cooperate, travelers are told, is a basis for denying entry into the
> United States. "
>
>
> (1)  Would some intrepid American be willing to test this in the
> spirit of John Gilmore?  It could provide a test case for the courts.
>
> (2)  It's easy to create a situation where a traveler doesn't know
> encryption keys.  Example:  Instruct a trusted assistant to (a)
> generate  keys, (b) use them to encrypt your laptop, and (c) divulge
> the keys only when you contact him from your destination.  What
> happens when you try to enter the United States with your laptop?
>
> (3)  If your laptop contains evidence that you have committed some
> small crime (for example, speeding), what happens if you invoke the
> Fifth Amendment when asked for your keys?
>
>
>
> -------------------------------------------
>
>
>
> -------------------------------------------




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