Welcome back to the United States. Give me your laptop and your passwords.

January 15, 2011 | By | 5 Replies More

Glenn Greenwald has written about the federal government’s common practice of seizing laptops and smart phones of American citizens who are re-entering the United States and reviewing their private data. Amazingly, our government is seizing this personal data without probable cause and even without reasonable suspicion:

When you really think about it, it’s simply inconceivable that the U.S. Government gets away with doing this. Seizing someone’s laptop, digging through it, recording it all, storing the data somewhere, and then distributing it to various agencies is about the most invasive, privacy-destroying measure imaginable. A laptop and its equivalents reveal whom you talk to, what you say, what you read, what you write, what you view, what you think, and virtually everything else about your life. It can — and often does — contain not only the most private and intimate information about you, but also information which the government is legally barred from accessing (attorney/client or clergy/penitent communications, private medical and psychiatric information and the like). But these border seizures result in all of that being limitlessly invaded. This is infinitely more invasive than the TSA patdowns that caused so much controversy just two months ago.

But how often are these e-strip searches occurring?

Image by Valery2007 at Dreamstime (with permission)

[T]his is happening to far more than people associated with WikiLeaks. As a result of writing about this, I’ve spoken with several writers, filmmakers, and activists who are critics of the government and who have been subjected to similar seizures — some every time they re-enter the country.

But this is the tip of the iceberg:

A FOIA request from the ACLU revealed that in the 18-month period beginning October 1, 2008, more than 6,600 people — roughly half of whom are American citizens — were subjected to electronic device searches at the border by DHS, all without a search warrant.

I highly recommend reading Greenwald’s detailed article for the reaction to this practice by a smattering of members of Congress and by a few court decisions. The sad bottom line is that there is no political momentum to condemn and bar this practice, even in the context of ubiquitous rhetoric regarding the need to limit the power of the federal government.

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Category: American Culture, Civil Rights, Orwellian, Privacy

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

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  1. Erich Vieth says:

    Now I've read some more on this issue, and it amazes me that there is not more of an uproar. For instance, see here: http://laptop-searches.tsarules.com/

    Here is the TSA "Rule itself. http://cbp.gov/linkhandler/cgov/travel/admissibil… I can't adequately express the cynicism and outrage I am feeling as I read this bullshit.

    The truth is that these thugs have you at their mercy when you're trying to get back into the U.S., and they will do whatever they can get away with. If you complain, then they will take an extra 10 hours to "examine" your personal data. The courts are cowed by the "threat of another 9/11," and you are not likely to complain anyway. And of course one out of a thousand of these searches might lead to some violation of law.

    But let's call it what it really is: A partial illegal repeal of the Fourth Amendment.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  2. Erich Vieth says:

    this is amazing. Here's the absurd 2008 TSA rule http://cbp.gov/linkhandler/cgov/travel/admissibil… :

    U.S. Customs and Border Protection

    Policy Regarding Border Search of Information

    July 16,2008

    This policy provides guidance to U.S Customs and Border Protection (CBP) Officers, Border

    Patrol Agents, Air and Marine Agents, Internal Affairs Agents, and any other official of CBP

    authorized to conduct border searches (for purposes of this policy, all such officers and agents

    are hereinafter referred to as "officers") regarding the border search of information contained in

    documents and electronic devices. More specifically, this policy sets forth the legal and policy

    guidelines within which officers may search, review, retain, and share certain information

    possessed by individuals who are encountered by CBP at the border, functional equivalent of the

    border, or extended border. This policy governs border search authority only; nothing in this

    policy limits the authority of CBP to act pursuant to other authorities such as a warrant or a

    search incident to arrest.

    A. Purpose

    CBP is responsible for ensuring compliance with customs, immigration, and other

    Federal laws at the border. To that end, officers may examine documents, books,

    pamphlets, and other printed material, as well as computers, disks, hard drives, and other

    electronic or digital storage devices. These examinations are part of CBP's long-standing

    practice and are essential to uncovering vital law enforcement information. 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.

    Notwithstanding this law enforcement mission, in the course of every border search, CBP

    will protect the rights of individuals against unreasonable search and seizure. Each

    operational office will maintain appropriate mechanisms for internal audit and review of

    compliance with the procedures outlined in this policy.

    B. Review of Information in the Course of Border Search

    Border searches must be performed by an officer or otherwise properly authorized officer

    with border search authority, such as an ICE Special Agent. In the course of a border

    search, and absent individualized suspicion, officers can review and analyze the

    information transported by any individual attempting to enter, reenter, depart, pass

    through, or reside in the United States, subject to the requirements and limitations

    provided herein. Nothing in this policy limits the authority of an officer to make written

    notes or reports or to document impressions relating to a border encounter.

    C. Detention and Review in Continuation of Border Search

    (1) Detention and Review by Officers. Officers may detain documents and electronic

    devices, or copies thereof, for a reasonable period of time to perform a thorough

    border search. The search may take place on-site or at an off-site location.

    Except as noted in section D below, if after reviewing the information there is not

    probable cause to seize it, any copies of the information must be destroyed. All

    actions surrounding the detention will be documented by the officer and certified

    by the Supervisor.

    (2) Assistance by Other Federal Agencies or Entities.

    (a) Translation and Decryption. Officers may encounter information in

    documents or electronic devices that is in a foreign language and/or

    encrypted. To assist CBP in determining the meaning of such

    information, CBP may seek translation and/or decryption assistance from

    other Federal agencies or entities. Officers may seek such assistance

    absent individualized suspicion. Requests for translation and decryption

    assistance shall be documented.

    (b) Subject Matter Assistance. Officers may encounter information in

    documents or electronic devices that is not in a foreign language or

    encrypted, but that nevertheless requires referral to subject matter experts

    to determine whether the information is relevant to the laws enforced and

    administered by CBP. With supervisory approval, officers may create and

    transmit a copy of information to an agency or entity for the purpose of

    obtaining subject matter assistance when they have reasonable suspicion

    of activities in violation of the laws enforced by CBP. Requests for

    subject matter assistance shall be documented.

    (c) Original documents and devices should only be transmitted when

    necessary to render the requested assistance.

    (d) Responses and Time for Assistance.

    (1) Responses Required. Agencies or entities receiving a request for

    assistance in conducting a border search are to provide such

    assistance as expeditiously as possible. Where subject matter

    assistance is requested, responses should include any findings,

    observations, and conclusions relating to the laws enforced by

    CBP.

    (2) Time for Assistance. Responses from assisting agencies are

    expected in an expeditious manner so that CBP may complete its

    border search in a reasonable period of time. Unless otherwise

    approved by the principal field official such as the Director, Field

    Operations or Chief Patrol Agent, responses should be received

    within fifteen (1 5) days. This timeframe is to be explained in the

    request for assistance. If the assisting agency is unable to respond

    in that period of time, CBP may permit extensions in increments of

    seven (7) days. For purposes of this provision, ICE is not

    considered to be a separate agency.

    (e) Destruction. Except as noted in section D below, if after reviewing

    information, probable cause to seize the information does not exist, any

    copies of the information must be destroyed.

    D. Retention and Sharing of Information Found in Border Searches

    (1) By CBP.

    (a) Retention with Probable Cause. 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 andlor

    copies of relevant documents or devices, as authorized by law.

    (b) Other Circumstances. Absent probable cause, CBP may only retain

    documents relating to immigration matters, consistent with the privacy and

    data protection standards of the system in which such information is

    retained.

    (c) Sharing. Copies of documents or devices, or portions thereof, which are

    retained in accordance with this section, may be shared by CBP with

    Federal, state, local, and foreign law enforcement agencies only to the

    extent consistent with applicable law and policy.

    (d) Destruction. Except as noted in this section, if after reviewing

    information, there exists no probable cause to seize the information, CBP

    will retain no copies of the information.

    (2) By Assisting Agencies and Entities.

    (a) During Assistance. All documents and devices, whether originals or

    copies, provided to an assisting Federal agency may be retained by that

    agency for the period of time needed to provide the requested assistance to

    CBP.

    (b) Return or Destruction. At the conclusion of the requested assistance, all

    information must be returned to CBP as expeditiously as possible. In

    addition, the assisting Federal agency or entity must certify to CBP that all

    copies of the information transferred to that agency or entity have been

    destroyed, or advise CBP in accordance with section 2(c) below.

    (i) In the event that any original documents or devices are

    transmitted, they must not be destroyed; they are to be

    returned to CBP unless seized based on probable cause by

    the assisting agency.

    (c) Retention with Independent Authority. Copies may be retained by an

    assisting Federal agency or entity only if and to the extent that it has the

    independent legal authority to do so-for example, when the information

    is of national security or intelligence value. In such cases, the retaining

    agency must advise CBP of its decision to retain information on its own

    authority.

    E. Review and Handling of Certain Types of Information

    (1) Business Information. Officers encountering business or commercial information

    in documents and electronic devices shall treat such information as business

    confidential information and shall take all reasonable measures to protect that

    information from unauthorized disclosure. Depending on the nature of the

    information presented, the Trade Secrets Act, the Privacy Act, and other laws may

    govern or restrict the handling of the information.

    (2) Sealed Letter Class Mail. Officers may not read or permit others to read

    correspondence contained in sealed letter class mail (the international equivalent

    of First Class) without an appropriate search warrant or consent. Only articles in

    the postal system are deemed "mail." Letters carried by individuals or private

    carriers such as DHL, UPS, or Federal Express, for example, are not considered to

    be mail, even if they are stamped, and thus are subject to a border search as

    provided in this policy.

    (3) Attorney-Client Privileged Material. Occasionally, an individual claims that the

    attorney-client privilege prevents the search of his or her information at the

    border. Although legal materials are not necessarily exempt from a border search,

    they may be subject to special handling procedures.

    Correspondence, court documents, and other legal documents may be covered by

    attorney-client privilege. If an officer suspects that the content of such a

    document may constitute evidence of a crime or otherwise pertain to a

    determination within the jurisdiction of CBP, the officer must seek advice from

    the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney's office

    before conducting a search of the document.

    (4) Identification Documents. Passports, Seaman's Papers, Airman Certificates,

    driver's licenses, state identification cards, and similar government identification

    documents can be copied for legitimate government purposes without any

    suspicion of illegality.

    F. No Private Right Created

    This document is an internal policy statement of CBP and does not create any rights,

    privileges, or benefits for any person or party.

  3. Erich Vieth says:

    "I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."

    James Madison

    Here is an good collection of other quotes by James Madison: http://zeroenergyconstruction.blogspot.com/2011/0

  4. Erich Vieth says:

    And speaking of outrageous abuses of privacy, one of the best was Blake J. Robbins v. Lower Merion School District. The school district's conduct was unbelievably outrageous here.

    http://en.wikipedia.org/wiki/Blake_J._Robbins_v._

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