
Warrantless airport seizure of laptop “cannot be justified,” judge rules - ulysses
http://arstechnica.com/tech-policy/2015/05/warrantless-airport-search-of-laptop-cannot-be-justified-judge-rules/
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regularfry
This bit from the opinion is interesting:

    
    
        [The hard drive was searched, and...] After incriminating emails were uncovered
        through that process, the agent sought and obtained a warrant based upon the 
        content of the emails to conduct the search of the hard drive that had already 
        been completed and to seize the emails that had already been reviewed. Those     
        mails now form a part of the basis of this prosecution, and Kim moves to 
        suppress that evidence, arguing that his rights under the Fourth Amendment of 
        the Constitution have been violated.
    

Isn't that post-facto application for a warrant precisely an admission that
the initial search was illegal?

~~~
irq-1
Like parallel construction but hyper-threaded.

~~~
cryoshon
This is my guess as well.

Look for the SIGINT connection. How did they know to seize the laptop, and why
did they immediately whisk it away "before" they knew the contents?

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regularfry
Whether you believe it or not, there is a reasonable explanation for this in
the opinion which doesn't require SIGINT magic, just fairly boring detective
work.

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cryoshon
It's possible, but I wouldn't say it's probable given that the agents seemed
to know to search certain emails in order to gather material for a warrant
after the fact.

If they had detective work in hand at the time of seizure which demonstrated
the content of these emails, they'd have been able to get a warrant for the
search on that basis.

~~~
regularfry
> It's possible, but I wouldn't say it's probable given that the agents seemed
> to know to search certain emails in order to gather material for a warrant
> after the fact.

They didn't search "certain emails", they searched _all of the emails on the
laptop_. It's not improbable that there would be interesting evidence in
someone's email after a trip when you expect they will have been up to no
good, and it's not improbable that a broad keyword search over those .pst's
would find something.

> If they had detective work in hand at the time of seizure which demonstrated
> the content of these emails, they'd have been able to get a warrant for the
> search on that basis.

Yes, but they evidently didn't think they needed one: the dominant culture the
agents were working in seems to say that this constituted a reasonable search,
and that applying for a warrant after the fact was proper - _that_ is the real
problem here, and the one the judge is picking up on. The opinion describes
this: they had enough warning of the guy's trip that they could decide whether
to seize the laptop on the way into the country or on the way out, but decided
on the latter _to give the guy a chance to generate incriminating evidence_ ,
because they didn't think they'd catch him in the act otherwise.

Seriously, this looks more like an everyday process that's evolved in a bad
direction than parallel construction. They weren't expecting to have to defend
this search procedure.

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mhuffman
I really like that some of the over-reaction after 9-11 is starting to be
reeled back in defense of personal privacy. The fact that the paternalistic
"If you haven't done anything wrong, you have nothing to worry about!" was
(and often is) accepted as "how it is" really was making me worry about our
future generations. It is nice to see that cooler heads are finally prevailing
in these areas.

~~~
deathhand
I agree with your sentiment. I also find it funny that this sort of illegal
government activity actually caught someone selling weapon parts to Iran. Does
the NSA system actually work? Random success? Statistically speaking you will
eventually catch something, right?

~~~
csbrooks
Yes, invading everyone's privacy and illegally searching them will catch more
bad guys. I don't think anyone's arguing it won't. The point is, it's not
worth the loss of freedom and privacy.

The purpose of America is not to make cops' jobs as easy as possible.

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draugadrotten
> The purpose of America is not to make cops' jobs as easy as possible

Why not make cops jobs as easy as possible?

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granos
Its a trade off. For the last few decades (at least) government
policy/lawmaking has been leaning towards more invasive surveillance of the
general public. This certainly makes police work easier, as they already have
monitoring systems in place that allow them to collect information much more
easily. They may already have a file on a suspect.

The down side is that public opinion and policy making are constantly
changing. A person who is constantly monitored needs to worry that any
activity they take part in today, regardless of how legal/acceptable, may
become unacceptable tomorrow. Take, for example, boycotting by Canadian
citizens of goods made in Israeli settlements. A year ago one may have
disagreed with the sentiment, but it certainly wouldn't have seemed illegal.
Today the Canadian government is threatening to bring these citizens up on
hate crime charges. (As an aside I am not deeply familiar with this particular
issue and am using it only as and example and as described at face value. Its
entirely possible that some people have committed hate crimes.)

The Canadian government certainly already has files on some, if not all, of
the biggest actors in this movement.

In a truly democratic society we need to tolerate and even bolster the voice
of dissent. We claim to value our (nearly) unlimited freedom of speech. But a
person who needs to worry that all of their words are recorded and can be used
out of context later to condemn them will be less likely to voice their
dissent. That loss of freedom is the cost of making police job's as easy as
possible.

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knodi123
> The down side is that public opinion and policy making are constantly
> changing

Don't forget the issue of abuse of surveillance data- see for example NSA and
CIA analysts using our databases to stalk their exes, or cops using their
legally-acquired surveillance powers in illegal ways to suppress dissent.

And there's another facet that I don't hear discussed enough- Take, for
example, the crime of speeding. What if speeding resulted in immediate traffic
fines, 100% of the time, with perfect enforcement. Is that how we want it to
work? Speeding is always possibile, and always punishable? Or is it actually
better to live in a world where speeding carries the _risk_ of traffic fines?

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eyeareque
I wonder if this will have an affect on the 100 mile border zone (constitution
free zone) One can hope:

[https://www.aclu.org/know-your-rights-
governments-100-mile-b...](https://www.aclu.org/know-your-rights-
governments-100-mile-border-zone-map)

~~~
tptacek
There is no 100-mile border zone. That's a marketing creation of the ACLU.
This question was put to the Supreme Court in the 1970s, and the Supreme Court
unequivocally held otherwise.

The nexus with reality of that "100 mile" figure is that it represents the
limit of the distance at which the USG can establish a permanent checkpoint
--- at which CBP is allowed only to stop people who have actually crossed the
border. Some DHS person misspoke when describing that process, and ACLU picked
it up as "the USG believes it has border search rights for anyone living
within 100 miles of the border". Which is a farcical position.

~~~
splat
> The nexus with reality of that "100 mile" figure is that it represents the
> limit of the distance at which the USG can establish a permanent checkpoint
> --- at which CBP is allowed only to stop people who have actually crossed
> the border.

That's not been true in my experience. I've done some traveling in the
southwest and have been regularly stopped at these checkpoints. They are on
U.S. highways far from the border and they stop everybody, not people actually
crossing the border or who have recently crossed the border.

Now, it is true that their search powers are more limited at these checkpoints
than at the border, but they do have the power to stop everyone who passes
through. (Whether or not they have the power to question you doesn't seem to
be settled, but to try to exercise your right to remain silent is a risky
endeavor. Some civil libertarians who have tried to exercise this right have
ended up in the hospital.) Which court case are you referring to?

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snowwrestler
They have the power to stop everyone in order to find out whether they have
recently crossed the border. That's what a checkpoint is: everyone stops and
answers a question or two.

What they do not have the power to do is conduct a warrantless search in the
absence of any evidence that the person has actually crossed the border on
that particular trip.

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neonfreon
Sure they do - if they have probable cause otherwise. The last few times I
went through these checkpoints (in Texas) they ran dogs around my truck
looking for probable cause.

Whether or not you've crossed the border recently seems like fairly
ineffective criteria. Are you sure that's the case? Where did you see that?

~~~
tptacek
Stopping cars and then walking drug dogs to generate cause for a search is no
longer constitutional.

~~~
SamReidHughes
My experience: They had a drug dog sniffing at the vehicle _without_ making it
stop for the dog. They actually asked me to keep going, a little bit short of
the stop sign, when I stopped for fear of running the dog over while it was
very energetically sniffing in front of and at the sides of the vehicle.

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izacus
Does that only hold for US citizens and are we as foreigners still treated
like cattle from some kind of Patriot/equivalent act?

~~~
tzs
It has nothing to do with any kind of Patriot/equivalent act. The border
search exception was authorized by the First Congress in 1789. It is extremely
well established that at international borders the government can conduct
warrantless searches and seizures, as long as they are reasonable.

In this case, the court did not feel that the search was reasonable, citing
such factors as the actual search not taking place until after the person had
left, and the search taking place far away from the border.

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hackercurious
I wonder if this will actually stop unjustified/unwarranted search and seizure
at US borders.

~~~
tptacek
It will not; the border search exception is as old as the Constitution.

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thelogos
What exactly does seizing a laptop even do anymore with the ubiquity of cloud
storage?

Simply make an encrypted backup and wipe everything before traveling through
airports and borders.

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frou_dh
That has to be some kind of fallacy:

The implication that just because a best-prepared "opponent" can thwart
someone, there's no point in engaging the <unknown>-prepared.

~~~
viraptor
There's got to be some threshold though - it's not best prepared. A few years
ago we wouldn't use much cloud storage because there weren't many options to
do so. Right now, if you are a terrorist and carry your data with you,
unencrypted, you're a complete idiot and will likely fail in some other way.

~~~
Zombieball
I've had the same thoughts myself and always come up with the same conclusion:
educated engineers would make great terrorists!

Turns out after a quick Google search there are a plethora of articles titled
"Why are so many terrorists engineers?"

I wonder if there are many more good terrorists engineers who just haven't
been caught yet.

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CPLX
A technical question: If he had been using whole-disk encryption (for example
a macbook pro with FileVault) would that have effectively prevented them from
doing the forensic searches that they did?

Specifically would that have inoculated him in this instance, where they did a
bit-for-bit copy of the HD and then returned the laptop to him?

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andrewpi
FileVault is closed source, so there is no guarantee that Apple doesn't have a
backdoor built into it.

~~~
brandon272
If there were a backdoor that Apple had built into FileVault, and they gave it
to authorities to access your hard drive, wouldn't it make it into the news
pretty quickly? (e.g. "Gee, I had my FileVault turned on but somehow the
authorities were able to decrypt the whole damn thing!")

And wouldn't Apple be destroying the product's reputation and severely harming
their own reputation by providing that backdoor access and having it hit the
news?

I'm not saying it's impossible, it just seems so unlikely as to not even
register on the list of concerns for a typical security-minded individual
unless that person is storing nuke codes or something.

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tantalor
You would get a gag order to prevent disclosing such a vulnerability.

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brandon272
Even with the possibility of obtaining gag orders, the risk and potential to
exposure to Apple would be huge.

They'd be in much safer territory to just not include encryption software with
their products at all, unless the whole NSA surveillance thing is so complex
and intrusive that they force large OS makers to specifically develop
backdoored encryption technology for the specific purpose of encouraging
people to store sensitive information on FileVault encrypted drives so that
the government to access it at it's will.

But, that doesn't really stand to reason in my mind.

