Warrantless airport seizure of laptop “cannot be justified,” judge rules

http://arstechnica.com/tech-policy/2015/05/warrantless-airport-search-of-laptop-cannot-be-justified-judge-rules/

by ulysses • 11 years ago

332 84 11 years ago

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

ascagnel_• 11 years ago

Unlikely; the article notes that the laptop was shipped 150 miles and the actual search took place far from the border, after any immediate risk had passed, not that the search itself was unjustified or unwarranted.

tptacek4• 11 years ago

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

eyeareque2• 11 years ago

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...

PopeOfNope• 11 years ago

I grew up near the Canadian border. When I left for SV 7 years ago, you never saw border patrol outside of the border crossings. When I came back last year, I saw their patrol cars roll by every couple of days. That may not sound like a lot, but I live in a small town in the middle of nowhere. I see them more than I see the local cops.

I also heard they put surveillance cameras and licence plate readers all over Massena[0]. There's nothing there. College kids roll through it all the time to go to Cornwall to drink. That's about it.

[0] http://www.newzjunky.com/news/0601massena_cameras.htm

tptacek4• 11 years ago

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• 11 years ago

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?

thelogos• 11 years ago

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.

pilif• 11 years ago

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

what it has always done: Provide free equipment for border agents.

boobsbr• 11 years ago

stolen equipment: https://www.youtube.com/watch?v=x00oGJb1KfI

venomsnake• 11 years ago

Even better buy laptop at the location, use livecd to access your home machine.

creshal• 11 years ago

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

Which helps against a border guard installed hardware keylogger how…? There's been reports of border guards flashing laptop firmwares (no idea how credible they are), which would make "wiping everything" rather difficult (you can re-flash the main firmware, but what about e.g. the Intel Management Engine firmware? That thing is a hardware rootkit by design).

davb• 11 years ago

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

True, but in some countries (such as the UK, under RIPA) it's illegal to refuse to give authorities your password or decryption key. You'd really want to use a decoy disk image with some content; an empty disk on an otherwise used-looking laptop arouses suspicion and would probably lead to further scrutiny.

Or keep your data on a server somewhere and hide the address and key, accessing your data remotely when you get to your destination.

technomancy• 11 years ago

With a decoy account you wouldn't need to go through the wiping rigamarole every time you travel. Just have the decoy account's login trigger a wipe of the primary account.

Of course, there's the question of how to make a realistic-looking decoy account that doesn't look suspicious on account of not having any files created in the past year or two, but with a little creativity you could pull it off.

frou_dh• 11 years ago

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.

leni536• 11 years ago

I think it fits into the "perfectionist fallacy"[1] category. I don't really know how widespread the name of this fallacy though.

[1] http://www.mhhe.com/mayfieldpub/ct/ch06/glossary.htm

viraptor• 11 years ago

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.

terminado• 11 years ago

What exactly does NSA's interception of all traffic to, and from, cloud storage even do anymore, now that everyone has laptops?

Simply carry around an encrypted local copy that's always secure and available, and never let any traffic traverse an uncontrolled network.

bdcravens3• 11 years ago

Computers aren't free, so it'd impair the flow of information, to say nothing of the hours it'd take to download hundreds of gigs from the cloud every single time you travel (given the typical hotel wi-fi, you wouldn't be able to use your computer, so might as well advise people to never travel with a computer)

izacus• 11 years ago

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

johnm1019• 11 years ago

The first paragraph of the article says it was a South Korean businessman connecting to an international flight _from_ the US to go home.

tzs• 11 years ago

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.

mhuffman• 11 years ago

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• 11 years ago

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?

d_t_w• 11 years ago

Oliver North had his laptop confiscated?

csbrooks2• 11 years ago

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.

regularfry5• 11 years ago

That's not quite what happened. The guy was already under investigation, and his laptop was specifically targeted when he crossed the border. This wasn't a dragnet win: it just supplied additional evidence in a case that was already being built.

itistoday2• 11 years ago

I also find it funny that this sort of illegal government activity actually caught someone selling weapon parts

All it said was that he was selling accelerometers, which could be used in a variety of things (i.e. autonomous vehicles, commercial aircraft, etc.):

The defendant was accused of unlawfully selling Q-Flex Accelerometers—models QA-2000-10, QA-2000-20, and QA-3000

There was no statement of intent (in the article at least), so saying these were to be used for weapons seems a bit premature.

Fiahil• 11 years ago

I wish it could be the same in France. With the recent debates around the surveillance law, I am under the impression that we go back on the exact same path you are describing, 14 years later.

It upsets me that we don't learn from what happened in the US and just repeating history while everyone else is making progress on theses particular issues.

knodi1232• 11 years ago

now you know how we feel about your healthcare, vacation, and maternity leave policies

regularfry5• 11 years ago

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?

bmelton• 11 years ago

Seems like he didn't feel the need for a warrant to "search", but did to "seize". Given the state of things, you could almost forgive him for thinking that he could do whatever the hell he wanted without worry of recrimination.

talmand3• 11 years ago

Which is funny since that's more or less how I've always heard, as a person outside of law enforcement, a warrant works. It provides permission to search for, often specific, evidence to seize.

irq-1• 11 years ago

Like parallel construction but hyper-threaded.

cryoshon2• 11 years ago

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?

duaneb• 11 years ago

The agent was begging the warrant!

Zaephyr• 11 years ago

The other important points influencing the decision were the amount of time spent examining the hard drive and extensive detail of the search.

"...that wherever the Supreme Court or the Court of Appeals eventually draws the precise boundary of a routine border search, or however either Court ultimately defines a forensic – as opposed to a conventional – computer search, this search was qualitatively and quantitatively different from a routine border examination, and therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in progress."

spoiledtechie• 11 years ago

Thats right. They knew, but didn't care so they skirted the law in order to find probable cause. They messed up. Thank the founders for our constitution ladies and gents. Its a strong document thats laws stood the test of time.

ChuckMcM• 11 years ago

[I am not a lawyer] My sister-in-law (the defense attorney) would say that you can look if you have probable cause, and then get a warrant for more invasive looking and/or looking elsewhere. But reading the judge's remarks in the article it does not sound like the judge believed they had enough cause to seize the laptop. I hope this goes to the Supreme Court because I would hope they would rule in favor of the 4th amendment on border seizures for laptops. It offends me as a tax payer and a voter that this is allowed and every year and twice on every election year I inform folks who would seek to be my representative that landing in favor of the 4th amendment will help to secure my vote.

That said, I've always been curious (but insufficiently brave) to create a 'bait' laptop which would be a laptop designed to exfiltrate video and audio of everything that goes on around it into a cloud server. Then tweet in passing I finally got some juicy bits and head off on an international jaunt to provide a seizure opportunity.

paulornothing• 11 years ago

If a warrant was obtained with evidence that itself was illegally obtained then yes the warrant is worthless. Also that "evidence" found is not admissible as it was illegally obtained.

CPLX2• 11 years ago

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?

andrewpi• 11 years ago

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

brandon2722• 11 years ago

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.

CPLX2• 11 years ago

Perhaps. The question still stands though. Assuming they don't have an actual purposeful back door is there evidence that they have the ability to crack FileVault level encryption at this point or no?

snowwrestler2• 11 years ago

Full-disk encryption is theoretically capable of preventing forensic searches of your computer.

I say "theoretically" because there might be weaknesses or backdoors in any given implementation that would permit decryption. (Hence the discussion of whether Apple's Filevault can be trusted against law enforcement.)

You might also face personal pressure to provide the key to decrypt.

Warrantless airport seizure of laptop “cannot be justified,” judge rules

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