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

[David Farber <dave@farber.net>]

________________________________________
From: Mike Godwin [mnemonic@well.com]
Sent: Sunday, August 03, 2008 3:24 PM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:     Peter Swire: No, You Can't Search My Laptop

Dave,

I think the argument has to be something like this:  in an age of fast
laptops and cheap hard-drive space, it's increasingly routine for
people to keep entire records of their personal affairs on computers
they carry with them in international travel, especially if they are
frequent travellers. Because of this, a warrantless search of a laptop
amounts to a warrantless search of people's entire lives. Such
searches have not historically been required of people crossing U.S.
borders, not even after the September 11 events.

It's true that the jurisprudence of border searches has been pretty
much a jurisprudence of requiring no grounds at all for a search. But
that jurisprudence is built on an understanding of border searches as
based on either security concerns or the detection of physical
contraband. Laptop searches don't uncover physical contraband, and it
is impossible to determine from inspection whether copyrighted content
is licensed or unlicensed to the carrier.

Compelled disclosure of encryption keys is something that should be
nipped in the bud whenever it appears.

Properly, customs officials should be grateful for laws limiting
inspection of computers' hard drives -- it is a chore even with
today's tools to inspect 500 gigs of anybody's stuff.


--Mike



On Aug 3, 2008, at 6:30 AM, David Farber wrote:

>
> ________________________________________
> 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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>>
>>
>>
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>
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