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chachazz
Premium
join:2003-12-14
kudos:9
Reviews:
·TELUS

1 recommendation

Court: 4th Amendment Applies At The Border

4th Amendment Applies At The Border; Also: Password Protected Files Shouldn't Arouse Suspicion
quote:
The 4th Amendment only allows reasonable searches, usually with a warrant. But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a "border search," for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw no reason to change this policy.

...9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border, that agents do need to recognize there's an expectation of privacy, and cannot do a search without reason.

Furthermore, they noted that merely encrypting a file with a password is not enough to trigger suspicion. This is a huge ruling in favor of privacy rights.
Full article at TechDirt.

OZO
Premium
join:2003-01-17
kudos:2
Very good news. Finally some bits of common sense start to win.

If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

Many years ago I've expressed similar point right here, on this forum. Argument, that custom has to check content of my computer to stop me from moving content over the border, was absurd from the beginning (and see the reasoning in the cite above)... Also I mentioned that my laptop becomes my personal private assistant more and more. And I don't want (or expect) someone digging deeply inside it... And finally, if I surrender my laptop for an inspection, I'm loosing confidence in it. All personal (private) data could be compromised, along with the OS itself. It means two things: 1) my private data could be copied and leaked without my consent or knowledge; 2) I will have to reformat and re-install everything on it after that procedure... The same applies, BTW, to corporate computers, used by employees, crossing borders. Intellectual property or company ("know how") could be compromises very easily too...
--
Keep it simple, it'll become complex by itself...


Blackbird
Built for Speed
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join:2005-01-14
Fort Wayne, IN
kudos:3
Reviews:
·Frontier Communi..
reply to chachazz
It's a step forward... but it will probably still have to withstand a challenge before the Supremes. So, it's not really over until it's over.
--
“The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money.” A. de Tocqueville


Juggernaut
Irreverent or irrelevant?
Premium
join:2006-09-05
Kelowna, BC
kudos:2

2 recommendations

said by Blackbird:

but it will probably still have to withstand a challenge before the Supremes.

Could.Not.Resist.

»www.youtube.com/watch?v=iDPjYZxi0n8

--
"I fear the day that technology will surpass our human interaction. The world will have a generation of idiots." ~ Albert Einstein


Hank
Searching for a new Frontier
Premium
join:2002-05-21
Burlington, WV
kudos:3
reply to Blackbird
I agree with Blackbird, the DOJ will, at the direction of others, continue to push the limits. I hope I am wrong, but I have doubts if the Supreme Court would uphold the lower courts ruling.


Anonymous1

@verizon.net
said by Hank:

I agree with Blackbird, the DOJ will, at the direction of others, continue to push the limits. I hope I am wrong, but I have doubts if the Supreme Court would uphold the lower courts ruling.

That's exactly what the DOJ was hoping. They were hoping that because of the "reasonable" expectations, that the court would have found that there was no "reasonable" expectations in this child porn case. Unfortunately for the DOJ the majority found that the search was reasonable, thus giving up all abilities for the DOJ to appeal to SCOTUS, since the DOJ ultimately still won the case.

I haven't read the case closely, but I think there are some reasoning defects in the majority's holding, namely whether or not the search that took place should be considered an "extended" border search. If it was an "extended" border search then "reasonable" expectations are already necessary (the search took place 165 miles away from the border). Because the majority decided to call this case a mere border search rather than an extended one, leads one to believe that they may have been overreaching a bit (judicial advocacy).

I'm not saying that the majority's reasoning is wrong, but I'm not sure this was the right case to apply such a reasoning, thus jumping the gun so to speak.


AVD
Respice, Adspice, Prospice
Premium
join:2003-02-06
Onion, NJ
kudos:1
reply to chachazz
somewhere the terrorists are celebrating.

lorennerol
Premium
join:2003-10-29
Seattle, WA

2 recommendations

said by AVD:

somewhere the terrorists are celebrating.

The day we started treating innocent people as if they were terrorists, they won and we lost.

Their goals are fear and loss of freedom. Of late, all they've had to do is sit back and watch us visit both upon ourselves.


La Luna
RIP Lisa
Premium
join:2001-07-12
Warwick, NY
kudos:3
Well, what are we to do, nothing? Then when something happens, it will be "WHY DIDN'T THEY DO SOMETHING TO STOP IT!!!" being screamed from the rooftops. That happened after 9/11, even though there was no credible evidence that something was imminent.

I don't know, I think the gov't is caught between a rock and a hard place on this.


EGeezer
zichrona livracha
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Midwest
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reply to AVD
said by AVD:

somewhere the terrorists are celebrating.

Any terrorist with a brain already has heard that CBP might go after encrypted files on portable devices and found other means to get files across borders.

There is steganography to hide files in plain sight, three and four part split encrypted files transmitted by different parties, word of mouth, TOR or other onion routing process, and even $10 micro SD cards no bigger than a fingernail that can be hidden anyplace if it's necessary to physically transport files across a border.

They have caught a few dummies who have child porn on their laptops.

On the other hand, there have been a few shenanigans on the enforcement side which makes the need for a thorough and effective OIG quite clear. See

»www.oig.dhs.gov/assets/Mgmt/2012···ug12.pdf
--
Buckle Up. It makes it harder for the aliens to suck you out of your car.


AVD
Respice, Adspice, Prospice
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join:2003-02-06
Onion, NJ
kudos:1
reply to La Luna
said by La Luna:

Well, what are we to do, nothing? Then when something happens, it will be "WHY DIDN'T THEY DO SOMETHING TO STOP IT!!!" being screamed from the rooftops. That happened after 9/11, even though there was no credible evidence that something was imminent.

They had one of the hijackers in custody before 9/11.
--
* seek help if having trouble coping
--Standard disclaimers apply.--

lorennerol
Premium
join:2003-10-29
Seattle, WA

2 recommendations

reply to La Luna
said by La Luna:

Well, what are we to do, nothing? Then when something happens, it will be "WHY DIDN'T THEY DO SOMETHING TO STOP IT!!!" being screamed from the rooftops. That happened after 9/11, even though there was no credible evidence that something was imminent.

I don't know, I think the gov't is caught between a rock and a hard place on this.

I think there is a significant difference between doing "something" and doing "anything" to stop it. We have gone down the path of the latter, in large part, into what I've been calling the "fascism of absolute security", where we've collectively given up vast amounts of personal freedom and privacy in return for an undeliverable sense of 100% safety, as provided by our government. Drones, cameras everywhere, mass, warrantless wiretapping (both voice and data), searches without cause, etc. I think it's gone too far.


jaykaykay
4 Ever Young
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join:2000-04-13
USA
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Reviews:
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·Speakeasy
reply to chachazz
I am amazed that it is the 9th circuit court that ruled about something of this nature in the way they did. They are, without a doubt, the most liberal court that is at the moment. I would have thought that they would have lessened the privacy if anything.


Blackbird
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said by jaykaykay:

I am amazed that it is the 9th circuit court that ruled about something of this nature in the way they did. They are, without a doubt, the most liberal court that is at the moment. I would have thought that they would have lessened the privacy if anything.

That's often the problem with labels like "liberal" or "conservative" that commonly get applied to various entities... the labeling can be far too stereotyped and 'catch-all'. I know privacy advocates politically to the right of conservatives or libertarians... and I know privacy advocates to the left of liberals or marxists. Many people hold collections of individual beliefs, and those don't always shake out neatly under one label. Sometimes such collections of beliefs are illogically grouped and mutually contradictory... but they're closely held, nonetheless.
--
“The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money.” A. de Tocqueville


AVD
Respice, Adspice, Prospice
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Onion, NJ
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yet the court is considered very liberal


La Luna
RIP Lisa
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Warwick, NY
kudos:3
reply to AVD
said by AVD:

said by La Luna:

Well, what are we to do, nothing? Then when something happens, it will be "WHY DIDN'T THEY DO SOMETHING TO STOP IT!!!" being screamed from the rooftops. That happened after 9/11, even though there was no credible evidence that something was imminent.

They had one of the hijackers in custody before 9/11.

They still didn't know about 9/11. Only some vague chatter about "something", but no dates and no direct information about what.
--
The Alien in the White House

20,504 DEADLY TERROR ATTACKS SINCE 9/11


StuartMW
Who Is John Galt?
Premium
join:2000-08-06
Galt's Gulch
kudos:2
reply to chachazz
I thought most borders had a sort of no-mans land although I'm not sure of the legalities of that. If there is no such "dead space" what is the legality of someone with one foot in one country and the other in another?
--
Don't feed trolls--it only makes them grow!


AVD
Respice, Adspice, Prospice
Premium
join:2003-02-06
Onion, NJ
kudos:1
you are over thinking this.

Rights are inalienable and are not conferred by territory, but by our creator.
--
* seek help if having trouble coping
--Standard disclaimers apply.--


StuartMW
Who Is John Galt?
Premium
join:2000-08-06
Galt's Gulch
kudos:2
Interesting theory. You might try visiting North Korea, Iran, Cuba or a few other countries to test your thesis
--
Don't feed trolls--it only makes them grow!