[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 4:33 PM
To: Brett Glass; David Farber; Ip
Subject: Re: [IP] Re:     Peter Swire: No, You Can't Search My Laptop

> ... that the Customs agents don't have the audacity to
> ask for the password of my home server on the grounds that I accessed
> it from abroad. (Yes, that's the next step.)
>

Brett,

I don't think you should worry.  Once you're information is past the border
(or extended border) and on your server, warrants will be required.

But you raise, perhaps unintentionally, the more likely (inevitable?) and
interesting controversy: if Customs can search your information stored on
physical media at the border without a warrant, why do they need a warrant
to search it at the "electronic border" as you transmit the same information
it to and from your server when you are abroad?

That gets to the inevitable (IMHO) the intersection (overlap? conflict?) of
FISA and border searches of electronic devices. If the government needs a
warrant from the FISA court to intercept information in electronic data
flows, why doesn't it also need a warrant when the same information is
stored on a device rather than flowing? The fact that the information is
stored (and not "fleeting" as it is when transiting the telecom networks)
actually argues for a warrant for searching devices.

Is there a reasoned argument that a warrant is required or not depending on
the medium on which the information is found? I don't think so. Generally,
the determining factor is the location of the search: no warrant (for
non-personal searches) at the border, warrants elsewhere.  The exception to
this location-based determination is international telecom traffic and the
exception doesn't make sense.  Should the exception be the rule?

If the FISA rationale is extended to requiring a warrant for searching
electronic devices at the border, it might be a slippery slope: if a laptop
search requires a warrant, how can a warrantless border search of a
briefcase or luggage be justified? It would be an administrative nightmare
to have a branch of the FISA court at every border crossing and virtual
border point, but since when has administrative convenience trumped a
constitutional right?

BUT, the slippery slope could run the other way: if there is no need for a
warrant to search static electronic devices at the border (as is the case
now), why is there a need for a warrant to search fleeting electronic flows
at the telecom equivalent of borders: gateway switches and routers?

Given the choice of "warrants for all media at borders" (i.e., FISA for
laptops and briefcases) or "no warrants for any media at borders" (no FISA
for telephone calls or internet traffic), I would expect Congress or the
Courts to favor the latter.

Stay tuned.

Bob


On 8/3/08 3:22 PM, "Brett Glass" <brett@lariat.net> wrote:

> Robert:
>
> In that case, thank Heaven for encrypted X terminal sessions. I'll just
> have to make sure that my machine scrubs the temporary RAM that contained
> my SSH password, and that the Customs agents don't have the audacity to
> ask for the password of my home server on the grounds that I accessed
> it from abroad. (Yes, that's the next step.)
>
> --Brett
>
> At 09:57 AM 8/3/2008, Robert Atkinson wrote:
>
>> Brett,
>>
>> Good try, but not good enough.  The same can be said for pieces of paper,
>> CDs, videotapes and photographs placed in a briefcase yet no warrant is
>> required for the briefcase.
>>
>> Bob
>>
>>
>> On 8/3/08 11:52 AM, "Brett Glass" <brett@lariat.net> wrote:
>>
>>> Your skull is a body cavity. And what is a laptop but overflow
>>> storage (sort of a storage locker) for your skull when it gets
>>> full?
>>>
>>> --Brett Glass
>>>
>>> At 07:30 AM 8/3/2008, Robert Atkinson wrote:
>>>
>>>> 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?
>>>




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