Software Nerd

Friday, April 25, 2008

Unreasonable Search and Monitoring

A few years ago, a man returning from Philippines was stopped at LAX airport and his laptop was searched. Child porn was discovered and he was prosecuted. He claimed that the evidence could not be used because of his 4th amendment rights.
The right of the people to be secure in their ..., papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,....

In 2006, the district court of California ruled in his favor. The ruling stated: "The government ... argues that, even if the minimal Fourth Amendment standard of reasonable suspicion applies to such searches, its search of Arnold's laptop... comported with that standard."

It might seem odd that returning from the Philippines is "reasonable suspicion"; but, the officers also questioned him. Without knowing the details, I'll simply assume that there was something suspicious about his answers. So, that part does not concern me.

What does concern me is something else the government claimed: "... that the border search of information stored in a computer hard drive is not subject to Fourth Amendment protection."

This claim is far more serious, because the government is claiming the right to search laptops of anyone at the border, without any suspicion whatsoever. Even if one grants the legitimacy of customs searches for contraband, how can the government claim the right to extend such a search beyond the physical?

The case then went to the circuit court, where the government won, with the court saying that the search was permissible under “the border search doctrine", and saying that the man "failed to demonstrate why the laptop search was “logically any different” from luggage searches,..".

So, can the TSA can search a laptop's contents -- more than just physically for bombs etc., -- on domestic flights? No, probably not yet, but the government is probably one step closer. I couldn't locate the text of the recent decision, so I'm not sure if the court made it abundantly clear that being a "border search" was the clincher.

Imagine this situation: Certain types of covert surveillance are not allowed without an order from a court. Now, in the wake of terrorism, a law is passed, allowing these types of surveillance, but leaving the situations open-ended to apply to all law-breaking. Given the existence of such a law, it is only a question of time before a government employee, trying to do his job, decides to use whatever legal means he can. He sees that the law is not restricted to terrorism, so he can use it to put a local drug-dealer under surveillance. Why would he not do so?

In the U.K., there is some talk of using their camera to fine people who are littering, even though that was far from the reason they were installed. And now, there's a story of a U.K. city-council that put a family under surveillance using the law originally written in the wake of terrorism. The suspected crime: claiming to be residents of the city, to get their kids into a good school district.

"The price of freedom is eternal vigilance." -- Thomas Jefferson

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3 Comments:

  • "Even if one grants the legitimacy of customs searches for contraband, how can the government claim the right to extend such a search beyond the physical?"

    The first clause leads to the second. We've already given them the principle. The rest must follow from there.

    As Mr. Jefferson said: "The price of freedom is eternal vigilance."

    I think we've already gone too far and we're just watching the chickens coming home to roost now. We weren't vigilant when they started this thing.

    I wish you would prove me wrong on this and show that there is still some way to stop it.

    I mean, in the long run I know we'll win. Having truth on our side is far bigger than anything the altruists and their jack-booted guardians can come up with. It's just that I think that'll be some time after I've died which means I'll have to spend the rest of my days struggling to cling to ever-diminishing freedom.

    Not really your point, I know. I just felt the need to spout a bit.

    Onward...

    By Anonymous Michael Stone, at 3:13 AM  

  • "Given the existence of such a law, it is only a question of time before a government employee, trying to do his job, decides to use whatever legal means he can."

    This principle is already clearly entrenched in American law enforcement. A good example is RICO, the Racketeer Influenced and Corrupt Organizations Act. The law was passed to combat organized crime. Since then, it has been used to threaten and prosecute Wall Street firms and other businesses.

    The law also apparently has standards of evidence and punishments that are lax and severe, respectively, enabling it to be a powerful cudgel with which to simply threaten businesses.

    Another example is the requirement that cash deposits greater than $10,000 must be reported to the IRS. The original purpose of this law was to deter the cash transactions used in drug smuggling, where drug dealers would carry bricks and duffel bags of cash.

    Instead, the law is now used frequently to catch tax evaders.

    By Blogger Galileo Blogs, at 9:57 AM  

  • Yes, RICO and drug laws are good examples.

    The latest governmental push in the field of unreasonable observation is the push by some legislators to force ISPs to keep some level of customer-activity record for up to two years.

    By Blogger softwareNerd, at 5:04 PM  

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