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Personal devices subject to search & seizure without warrant or probable cause

by azer | February 7, 2008 at 08:36 am | 654 views | add comment

Many years ago the courts in the U.S. gave clear interpretations of the laws concerning search of personal information devices: devices with limited amounts of memory could be searched by police without a warrant - but search of devices with large amounts of memory required a warrant.

The logic was both simple and clear: If a police officer asked a person to empty his pockets there was historically a reasonable possibility that the person would produce a small address book. Police had the right to quickly flip through the address book and make notes concerning anything significant that was found inside. Portable devices that can contain thousands of pages of text require a great deal of effort to scan and can contain large amounts of personal information. The courts determined that searching such devices was unreasonable without a warrant.

Apparently the new mentality is that these interpretations of the law no longer apply:

The seizure of electronics at U.S. borders has prompted protests from travelers who say they now weigh the risk of traveling with sensitive or personal information on their laptops, cameras or cellphones. In some cases, companies have altered their policies to require employees to safeguard corporate secrets by clearing laptop hard drives before international travel.

Today, the Electronic Frontier Foundation and Asian Law Caucus, two civil liberties groups in San Francisco, plan to file a lawsuit to force the government to disclose its policies on border searches, including which rules govern the seizing and copying of the contents of electronic devices. They also want to know the boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment. The question of whether border agents have a right to search electronic devices at all without suspicion of a crime is already under review in the federal courts.

The lawsuit was inspired by two dozen cases, 15 of which involved searches of cellphones, laptops, MP3 players and other electronics. Almost all involved travelers of Muslim, Middle Eastern or South Asian background, many of whom, including Mango and the tech engineer, said they are concerned they were singled out because of racial or religious profiling.

This is having a severe effect on travel:

At least two major global corporations, one American and one Dutch,
have told their executives not to carry confidential business material
on laptops on overseas trips, Gurley said. In Canada,
one law firm has instructed its lawyers to travel to the United States
with "blank laptops" whose hard drives contain no data. "We just access
our information through the Internet," said Lou Brzezinski, a partner
at Blaney McMurtry, a major Toronto law firm. That approach also holds risks, but "those are hacking risks as opposed to search risks," he said.

Some of the issues involved are not entirely obvious - but they're serious:

If the government's position on searches of electronic files is upheld,
new risks will confront anyone who crosses the border with a laptop or
other device, said Mark Rasch, a technology security expert with FTI Consulting and a former federal prosecutor. "Your kid can be arrested because they can't prove the songs they downloaded to their iPod
were legally downloaded," he said. "Lawyers run the risk of exposing
sensitive information about their client. Trade secrets can be exposed
to customs agents with no limit on what they can do with it.
Journalists can expose sources, all because they have the audacity to
cross an invisible line."

Once again, fear is being used as an excuse for the imposition of unreasonable disregard for due process. We are constantly told that due process, which evolved over a very long period of time out of painful practical experience, is somehow no longer needed.