In Democratic America, agents search YOU!

January 13, 2011 8:52 AM

"The [Customs and Border Patrol] specifically wanted laptops and cell phones and were visibly unhappy when they discovered nothing of the sort."

A computer security expert, Jacob Applebaum, recounts his temporary detention upon returning from Iceland. This comes after his run in last year with the same agency in Newark. In both instances, Applebaum was detained, searched, and denied access to a lawyer since he was neither under arrest or charged with a crime. This time in Seattle he didn't carry any electronics, except for a few thumb drives containing the Bill of Rights.

The concept of temporary legal black holes seems to be at odds with the Fourth Amendment. Nevertheless, in United States v. Verma last year, the court upheld the right of the government to "routinely" search any and all electronics at the border without any warrant as long as there is "a particularized and objective basis for suspecting the particular person." The continued erosion of the Fourth Amendment has led to some advances in protest undergarments.

Applebaum is a noted developer for Tor, WikiLeaks supporter, and recursive homeboy of Donald Knuth. He is also a MeFite, as featured last month in another FPP.

posted by notion (78 comments total)

Also, keep in mind that he is an American citizen, so all of this harassment is occurring as he returns to his own country.
posted by Philosopher Dirtbike at 9:01 AM on January 13, 2011 [5 favorites]

in all fairness, the CBP searched me throughly when i returned from france in 2002. i was the only person subject to this treatment from my flight. i asked the agent searching why i had been selected for search, and he mentioned a order of protection i had against me from 1997.

yeah, random. haven't had to go through customs since then. probably won't now.
posted by lester at 9:05 AM on January 13, 2011

I presume the detention and search were under the color of 8 USC 1357. Does anyone know of other authority? I wonder if such treatment has ever been successfully challenged in court.
posted by exogenous at 9:11 AM on January 13, 2011

"a particularized and objective basis for suspecting the particular person."

Isn't that the kind of thing that typically can get you a warrant?
posted by aaronetc at 9:13 AM on January 13, 2011

• I dread US Customs more than I dreaded walking across the border from Turkey to Iraq in 2005. That's something worth noting.

Amen brother. In my international travel I make a very specific point of avoiding any US transit. Canada not much better but what can you do?
posted by Meatbomb at 9:15 AM on January 13, 2011 [1 favorite]

What's particularly absurd about this detainment and search is there's no reasonable way to think Customs would actually find any contraband. I mean, pretending for a moment Applebaum even had any illegal digital material, surely it'd be online somewhere in the cloud and not on a laptop in his luggage? The searches come off as petty harassment.
posted by Nelson at 9:16 AM on January 13, 2011 [1 favorite]

• The CBP agent stated that I had posted on Twitter before my flight and that slip ended the debate about their random selection process.

What the fuck?
posted by ghharr at 9:19 AM on January 13, 2011 [11 favorites]

Isn't that the kind of thing that typically can get you a warrant?

I think you're looking for "probable cause".
posted by norm at 9:20 AM on January 13, 2011

Reading the US vs. Verma case, it seems that whether or not the search was "routine" there is precedent for searching the contents of electronic storage devices, based on it being less invasive than disassembling and reassembling a gas tank (!) The random selection fantasy must have involved less paperwork.
posted by RobotVoodooPower at 9:43 AM on January 13, 2011

Even I find this pretty disgusting and outrageous. I'm not a wikileaks fan, but the government needs to get a warrent, or present some evidence. Nice trick encoding the block device on the USB stick. Never thought about that before.
posted by humanfont at 9:44 AM on January 13, 2011

The concept of temporary legal black holes seems to be at odds with the Fourth Amendment.

The border search exception is a longstanding exception to the 4th Amendment.
posted by smackfu at 9:44 AM on January 13, 2011 [3 favorites]

If he had no phone, how was he sending tweets?
posted by Karmakaze at 9:54 AM on January 13, 2011

I'm surprised anyone pays attention to the 4th amendment anymore given all of the exceptions.
posted by ryoshu at 9:57 AM on January 13, 2011 [1 favorite]

• I requested access my lawyer and was again denied. They stated I was I wasn't under arrest and so I was not able to contact my lawyer.

I've said this before, but it's something absolutely everyone should know:

If you suspect that you are under arrest, or otherwise being detained, the most important thing to do is attempt to peacefully leave.

If they let you leave, hooray, you're free to go. If not, they have clearly and unmistakably detained you and Miranda kicks in.
posted by Navelgazer at 10:00 AM on January 13, 2011 [81 favorites]

I really wonder how much of this "We need to make a copy of your data" is pure intimidation - I don't really think they're going to spend that much effort on going through Joe Random's porn collection. (Of course, when you're a Tor developer, the situation is a bit different)
posted by ymgve at 10:07 AM on January 13, 2011

>If he had no phone, how was he sending tweets?

He tweeted before he left Iceland and after he got home from the airport, then recounted the story the next day (not while the event was happening in real time).
posted by SpaceBass at 10:09 AM on January 13, 2011

Navelgazer, while I think that's great advice in most situations (I like the phrase "Am I free to go?"), I'm not convinced that a person detained by Customs agents is free to enter the country even if not under arrest. Somewhat related, see this story.
posted by exogenous at 10:10 AM on January 13, 2011 [8 favorites]

I wish this could spark my outrage, but it's pretty low on the scale of detention abuse, especially compared to ICE detentions:

"ICE detainees may be detained for years, the longest I am aware of is eight years, and he’s become a legend around here. Most people in here say that if they reach the one-year mark they would rather sign for deportation. But when reality hits once people reach the one-year mark there’s no turning back, there are no guarantees, in fact despite all that time served, the odds remain against you."

Papers please.
posted by yeloson at 10:23 AM on January 13, 2011 [8 favorites]

How hard would it be to adopt a policy of not harrassing political dissidents?

I don't think my elected representatives have a lot of good excuses for allowing this to happen. Especially my pal Obama, since CBP and TSA are both subject to his directive control.
posted by grobstein at 10:28 AM on January 13, 2011 [1 favorite]

The thing about police states is that they are particularly nasty to their own citizens. When I traveled to the Soviet Union, I was pretty much left alone by officials, but ordinary citizens avoided me because if they were seen talking to an American, they would get in trouble. (I was told this by a dissident who said he didn't care because he was already in trouble.)
posted by Obscure Reference at 10:32 AM on January 13, 2011 [11 favorites]

True, exogenous, but the bigger issue there was getting him access to his lawyer.

Oh! There's another tip: whenever a government agent says that you can't have access to a lawyer, they are full of shit. Unless you're in Gitmo, this is simply never true.
posted by Navelgazer at 11:01 AM on January 13, 2011 [2 favorites]

Yeah, no. "Papers, please" is a reference to people in Eastern Bloc countries being required to produce papers internally for any reason at any time. It is not a reference to border control or illegal immigration or the like. There are obviously criticisms to be made in those areas, but "papers, please" is not one of them. Essentially every nation in the world requires documentation for foreigners entering their shores.
posted by Justinian at 11:03 AM on January 13, 2011

We are safe then. The "Papers Please" zone only extends 100 miles from the broders and the coasts.
posted by Dr. Curare at 11:06 AM on January 13, 2011 [3 favorites]

exogenous: Applebaum is an American citizen, AFAIK US citizens can't be denied reentry without substantial cause. IANAL and suspect there's little enough case law that even Real Live Lawyers would hesitate to speculate.
posted by Skorgu at 11:07 AM on January 13, 2011

Yeah, no. "Papers, please" is a reference to people in Eastern Bloc countries being required to produce papers internally for any reason at any time. It is not a reference to border control or illegal immigration or the like. There are obviously criticisms to be made in those areas, but "papers, please" is not one of them. Essentially every nation in the world requires documentation for foreigners entering their shores.

I'm not sure what you're responding to, Justinian, but since you specified "foreigners" in your comment, you should probs know that Applebaum is a US citizen.
posted by grobstein at 11:08 AM on January 13, 2011

Unless you're in Gitmo, this is simply never true.

You have no phone, they have guns. I suppose, if they haven't pulled you backstage away from other, undetained, people, you could shout out the name and number of your lawyer and hope someone contacts him/her for you.
posted by nomisxid at 11:11 AM on January 13, 2011 [1 favorite]

The CBP stuff is pretty wacky but as far as I know it's always been so. Pre-9/11 I had an encounter with CBP concerning my work laptop, which since I work in banking has a fully encrypted drive to comply with Gramm–Leach–Bliley and which only I am authorized to log in to, also as a result of GLB. The CBP agent made me choose between violating the banking act or violating his request to log in and look around, with the empoundment of my laptop for an indeterminate amount of time for "forensics" being the operative threat.

I won't tell you which I chose but dammit I did have to work on Monday.
posted by SoFlo1 at 11:20 AM on January 13, 2011 [4 favorites]

Essentially every nation in the world requires documentation for foreigners entering their shores.

Perhaps reading the article would help?
posted by rodgerd at 11:21 AM on January 13, 2011

The CBP agent made me choose between violating the banking act or violating his request to log in and look around

As a result of situations like that (actually, situations where people declined to unlock the machine and allowed it to be confiscated, based on the logic that the paperwork for a confiscated laptop was easier than the paperwork for an unauthorized access), my former employer sent around a memorandum authorizing anyone traveling internationally to FedEx their laptop and/or hard drives rather than hand-carrying them across the border.
posted by Kadin2048 at 11:30 AM on January 13, 2011 [1 favorite]

I'm not a wikileaks fan, but the government needs to get a warrent, or present some evidence.

Applebaum is an American citizen, AFAIK US citizens can't be denied reentry without substantial cause.

Not when crossing a border. Even back into your own country. Everyone except diplomats is subject to customs and border search. If you don't like it, don't cross the border.

Seriously, the government should get a warrant to open your suitcase because the dog thinks you have an orange in there?
posted by three blind mice at 11:33 AM on January 13, 2011

Clearly this was not random. Does even the CBP claim that it was random? They obviously have the legal authority to do targeted examinations so do they really claim that all their searches are random or do they just not differentiate between random and targeted examinations? Which sounds reasonable considering you probably don't want to verify tocriminals and what-not that they are under suspicion.
posted by Authorized User at 11:34 AM on January 13, 2011

The border search exception is a longstanding exception to the 4th Amendment.

The idea that you don't actually have to cross a border to be subject to it is new, though.
posted by mhoye at 11:37 AM on January 13, 2011 [3 favorites]

The concept of temporary legal black holes seems to be at odds with the Fourth Amendment.

The border search exception is a longstanding exception to the 4th Amendment.

There are many such exceptions--and have been for years--the automobile exception, the plain view doctrine, the Terry stop and frisk, the administrative search upon impound of automobiles, and several others. These have been existence longer than my life and the lives of most MeFites.
posted by Ironmouth at 11:40 AM on January 13, 2011 [1 favorite]

• I requested access my lawyer and was again denied. They stated I was I wasn't under arrest and so I was not able to contact my lawyer.

I've said this before, but it's something absolutely everyone should know:

If you suspect that you are under arrest, or otherwise being detained, the most important thing to do is attempt to peacefully leave.

If they let you leave, hooray, you're free to go. If not, they have clearly and unmistakably detained you and Miranda kicks in.

A border stop is not the same thing.
posted by Ironmouth at 11:45 AM on January 13, 2011

The border search exception is a longstanding exception to the 4th Amendment.

The idea that you don't actually have to cross a border to be subject to it is new, though.

Applebaum crossed an international border in this circumstance.
posted by Ironmouth at 11:46 AM on January 13, 2011

Clearly this was not random. Does even the CBP claim that it was random? They obviously have the legal authority to do targeted examinations so do they really claim that all their searches are random or do they just not differentiate between random and targeted examinations? Which sounds reasonable considering you probably don't want to verify tocriminals and what-not that they are under suspicion.

It was not a random search. He tweeted that he was coming over the border. They were looking to see if he had any classified information. They had a particularized reason, given his participation in wikileaks.
posted by Ironmouth at 11:48 AM on January 13, 2011

you should probs know that Applebaum is a US citizen.

Coming back into the country. "Papers, please" is a reference to oppressive internal security. That isn't to say that our border security isn't oppressive, I'm just saying it would be nice to get our references straight. Otherwise ANARCHY.
posted by Justinian at 11:49 AM on January 13, 2011

There are many such exceptions--and have been for years--the automobile exception, the plain view doctrine, the Terry stop and frisk, the administrative search upon impound of automobiles, and several others. These have been existence longer than my life and the lives of most MeFites

You used this excuse in the last argument against WikiLeaks.

Just because that's the way things are, doesn't mean that's the way they should be.

For instance, one excuse for probable cause in automobile stops is drug dog alerts. A recent Chicago Tribune analysis shows that drug dogs have been wrong more often than right in traffic stops. For minorities, the success rate is even lower. Often, drug reform activists and others say that dogs are given cues by their handlers to give false alerts. This is often impossible to prove in court.

Maybe others are content with the way things are because that's the way they've always been. But I and other members of the ACLU and civil liberties groups will continue to fight for privacy, even if it's unpopular, even if I don't remember a time when it wasn't that way.
posted by formless at 12:20 PM on January 13, 2011 [10 favorites]

how to stop wikileaks
posted by finite at 12:48 PM on January 13, 2011 [1 favorite]

I traveled regularly behind the Iron Curtain in Europe during the Cold War. Not once, in all those 'unfriendly' border crossings was I treated as shittily as I was driving back across from Canada a couple of years ago.

The next time I leave the USA it will be forever, I guess.
posted by pjern at 12:53 PM on January 13, 2011 [4 favorites]

I've been overseas since 1999, and the worst customs and immigration experience is always when I go home to visit family. And it's worse every single time, and I'm comparing this with countries (like Taiwan, for example) that have "The penalty for bringing drugs into this country is DEATH" posted frequently between immigration and customs. I've even had a passport issue (not enough pages left) in Indonesia, was asked to go to a back office, was alone in a room with many men with machine guns, and was treated with courtesy and politeness.

On the other hand, before we were married, my then girlfriend was pulled aside and questioned for 30 minutes because she'd written down my aunt's address instead of a hotel. When returning home, and being asked how long I'd been in Japan, I said that I lived there. The lovely TSA agent's next question was "Why are you back, then?" as if I had to satisfy her newfound level of contempt to be allowed in.

tl;dr The rest of the world isn't like this. America doesn't have to embrace policies this shitty towards its own citizens. It chooses to do so.
posted by Ghidorah at 1:56 PM on January 13, 2011 [16 favorites]

Ironmouth, I'm aware of that. The idea was to get his lawyer there. (Which still may not have worked but would at least get some more useful information on record.)

Also, the advice was meant for more generalized application. Cops are always going to want to keep lawyers out and to be able to say that statements were made outside of custody. Attempting to leave peacefully hurts nothing and helps a great deal in laying a foundation for upholding your rights.
posted by Navelgazer at 1:57 PM on January 13, 2011

So, given that CBP agents are federal employees, and that it's illegal for federal employees to view classified material without authorization/clearance... it seems like these agents were seeking to break the law. How would I go about reporting this likely illegal behavior to the relevant authorities?
posted by mock at 2:09 PM on January 13, 2011 [3 favorites]

I don't understand how you can be not-under-arrest but also denied access to a lawyer. That particular grey area seems like a place where the government could get away with a number of things.
posted by adipocere at 2:36 PM on January 13, 2011

notion, s/Applebaum/Appelbaum/ in your tags
posted by finite at 2:41 PM on January 13, 2011

Gah. Thanks finite. Being price has its dyslexic. Mods, if you could fix the post, that would be extra groovy.
posted by notion at 3:00 PM on January 13, 2011

AFAIK US citizens can't be denied reentry without substantial cause.

Not when crossing a border. Even back into your own country.

U.S. citizens can't be denied reentry to the U.S., but their stuff can.
posted by one more dead town's last parade at 3:12 PM on January 13, 2011

Justinian: "Papers, please" is a reference to people in Eastern Bloc countries being required to produce papers internally for any reason at any time

Isn't this true of western Europe, too? I'm pretty sure France and Italy have a similar ability to demand identity papers at any time. I'm not sure how much it's used, tho.
posted by Lleyam at 3:21 PM on January 13, 2011

"Isn't this true of western Europe, too? I'm pretty sure France and Italy have a similar ability to demand identity papers at any time. I'm not sure how much it's used, tho."

Also please note that ICE reserve the right to check papers within 100 miles of a shoreline or border, and will raid to do so. They do use this power. Have fun with that.
posted by jaduncan at 3:55 PM on January 13, 2011

Isn't this true of western Europe, too? I'm pretty sure France and Italy have a similar ability to demand identity papers at any time. I'm not sure how much it's used, tho.

I was in the waiting room in a Paris train station (gare du Nord maybe) waiting for the train to London when about eight gendarmes armed with machine guns came in. Four waited outside the door, blocking the exit and the others asked to see the papers of everyone in the room. This was about 15 years ago. They checked everyone's papers and left. It was very disconcerting and a little scary.

Also, gendarmes are very good looking. If you have your papers.
posted by shoesietart at 4:01 PM on January 13, 2011

Pretty much any place in Europe the police can demand to see your papers at will. This I did not mind so very much, but the Republic of Ireland as a result NIT of years of terrorist threat, but the influx of Roma from Eastern Europe got these damned annoying securithugs in some chain eatting establishments. Despite stern E.U. anti-discrimination laws they are there to keep out Roma, but a lot of them don't have any idea what a Roma looks like. I traveled pre-backscatter and had no difficulties at that time with the TSA people. They looked at my stuff, sent methrough the metal detector and that was that. It was not as humiliating at all as going to get a €2 Coca-Cola in beautiful Downtown Dublin.
I went to the E.U. Office and described my aweful experience, I contacted the company headquarters and sent an account of my experience and a picture of the securithug in question. I did not have time to fully persue this but I am never going back to Ireland again. Many of my dead ancestors were Irish too.
posted by Katjusa Roquette at 4:23 PM on January 13, 2011

Also keep in mind that Wikileaks has not been officially charged with any crime, as it is protected by this thing we don't seem to need anymore:

Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
posted by Chuffy at 5:20 PM on January 13, 2011 [1 favorite]

The idea that you don't actually have to cross a border to be subject to it is new, though.

Can you clarify? Appelbaum was flying in from Iceland, so he crossed the border shortly before the plane landed. Clearing customs in an airport is not a new concept. If you're referring to the use of the border search exception being invoked near the Mexican or Canadian borders, that isn't all that new either.

These 'papers, please' complaints are rather tiresome. Appelbaum was detained for a whole 30 minutes and admits the CBP agents were polite to him on this occasion. As he describes it, this is not a significant imposition (whereas his previous experience was, and his complaints about it were entirely justified). Clearing customs is an annoyance and most often the product of petty bureaucracy, but it is not an inherently repressive condition of travel. If you really hate it, then work to increase the popularity of free trade agreements, or re-assess the disparities between the rights of citizens, residents, and visitors in law, and how those might bias the administration of such functions.

In an actual police state, which the US is not, they don't say 'please' when they want to show your papers. When people in authority wish to intimidate you they don't make smartass remarks while wearing guns on their belts, they cock and aim their weapons at you. It doesn't make that much difference whether you get to call your lawyer or not because in the absence of an independent judiciary, your lawyer is not going to do anything riskier than provide basic administrative assistance.

Individual privacy and dignity enjoys some constitutional protection, as does the security interest of society as a whole. The balancing of these interests is subject to legislative, administrative, and judicial review. Flawed though all three branches of government can be in their different ways, the variety and scope of available remedies is nonetheless vast, and the right to pursue such remedies is largely unquestioned. This is the opposite of a police state. People in the US can generally rely on a presumption of innocence, and even when that presumption is replaced by a conclusion of guilt there are many avenues of appeal. Some would argue that there are too many; not just advocates of penal harshness, but also supporters of due process who point out the difficulty of navigating all the options in the correct order. But to characterize the US system solely on the basis of its failures is to do it an enormous disservice, and a shameful waste of political capital*. If you feel like the US is already a police state, then perhaps you should check out this PBS documentary/website about the non-presumption of innocence in the legal systems of Mexico**, and especially the film's unprecedented depiction of a court, which will be unrecognizable as such to most Americans.

* Political capital is is most visibly employed by politicians, but no less significant for protesters, advocates,and activists It's harder to quantify, but ultimately it's available to anyone with time and a message.

** Observing that there are flaws within the Mexican judicial system is not meant as an indictment of Mexico or Mexican people. In discussions of borders and laws, Mexico's harsh treatment of illegal immigration is often cited to justify draconian policymaking in the US. Mexico has in fact decriminalized illegal immigration and enacted substantial human rights reforms. Note that Mexico is a federation of states just like the US, and thus has multiple legal systems rather than a single universal one.

By contrast, consider how an abundance of constitutional protections ultimately enabled the apparently disturbed Jared Loughner to shoot a member of Congress and kill or wound many others. Loughner had five contacts with police prior to the shootings. The most recent of those was a traffic stop on the morning of the shooting itself, only two hours prior to his violent rampage. He rolled slowly through an intersection where he should have stopped. As he had his license, registration and so forth to hand, the officer simply warned him and let him go. In retrospect, it's quite likely that he had his weapons with him at the time and police have theorized that he either going to or returning from practice with the gun out in the desert. However, the officer found no probable cause to search his car under the circumstances.

There have been enough questions raised about his mental stability that it's surprising he was able to buy a gun, and (if he is truly mentally ill) tragic that he was not receiving treatment. But although funding for mental health care is often lacking at both the state and the federal level, arguably creating a public health crisis, restriction of legal rights is not contingent on funding. For example, public services for blind people may be inadequate but that doesn't make it any easier to get a driving license if you can't see the chart. Loughner's rights to go about freely, drive, buy and own a gun etc. despite a pattern of decline reflect the strength of individual rights compared to those of the state: because he had not directly infringed on anyone's rights, there was no clear justification to infringe on his. In the past he could have been confined or had his rights abrogated more easily, but two Supreme Court decisions in 1975 and 1979 raised the burden of proof for the state significantly. We consider the risk of harm by an institution so much more severe than that by an individual that we have limited government's ability to act preemptively, and this limitation has persisted despite the shooting of Reagan and many other episodes.

Should organizations like the ACLU or EFF or whoever continue to promote the personal and political freedom of the individual? Absolutely. Criticism of government's making, enforcement, or administration of law is fundamental to the health of an open society, the immune system of the body politic. But reflexive and hyperbolic criticism does not serve that end well, for the same reason that people eventually stopped listening to the boy who cried wolf. Misuse of official authority can easily manifest as an infringement of statutory, constitutional or human rights: but not all irritation and impatience rises to the level of being an infringement. The idea that all law enforcement is an infringement on liberty and that all people in uniform are nasty authoritarians is fundamentally similar to the idea that all taxation is theft and that all people employed by government are shiftless thieves.

Stereotyping authority and proclaiming the existence of a police state at every opportunity trivializes the brutality of actual repression both here and abroad, in both the past and the present. Worse, it reduces debate to its lowest common denominator, marginalizing the most vulnerable and drowning out the reasoned arguments for reform. Worst of all, it feeds into the idea that government itself is illegitimate and so corrupted that revolution is the only solution, the popularity of which enables Glen Beck and his ilk to pass themselves off as rational actors in the political process.
posted by anigbrowl at 5:31 PM on January 13, 2011 [4 favorites]

You've no idea how deep that can of worms goes, mock. It's only a matter of time before Anonymous decides it's funny to leaflet or stencil graffiti wikileaks' secret/noforn cables all over U.S. embassies and consulates.

I donno how seriously they'd take that given wikileaks has released the information already. Anonymous' epicest lulz would be them needing employees with security clearness just to scrub off the graffiti. I doubt you'd see that, but you'd definitely annoy them.

If you're an up & coming stencil graffiti artist tired of living in Banksy's shadow*, you might try asking wikileaks for a few prerelease secret/noforn cables for stenciling around a U.S. embassy. Prereleases might induce significantly more reaction and/or garner more attention.

* I'm doubtful that Banksy would try this since it might focus unwanted attention on his real identity.
posted by jeffburdges at 6:07 PM on January 13, 2011

You are wrong anigbrowl. They were clearly planning on taking his electronics, presumably not returning them for months, which definitely qualifies as a 'significant imposition'.

All this data insecurity at border crossings is an enormous imposition on travelers. Applebaum is clearly a political case, but ordinary people's laptops are occasionally just stolen by TSA officers. There was an article recently about how a TSA officer was never prosecuted after he stole a laptop from a flyer under the guis of inspection.

There is no good reason for them to even obtain your data without a warrant, period. We're not talking biological material that might contain diseases or whatnot. If they're nervous about you, they should inspect your batteries, which might become explosive, taking only the batteries if they're unsatisfied.
posted by jeffburdges at 6:20 PM on January 13, 2011 [3 favorites]

The law on border searches is complex (pdf).
posted by anigbrowl at 7:33 PM on January 13, 2011

What would be even more hilarious: EnCase 0day.
posted by mock at 7:35 PM on January 13, 2011

Individual privacy and dignity enjoys some constitutional protection, as does the security interest of society as a whole. The balancing of these interests is subject to legislative, administrative, and judicial review. Flawed though all three branches of government can be in their different ways, the variety and scope of available remedies is nonetheless vast, and the right to pursue such remedies is largely unquestioned.

Amen. I think people need to educate themselves about the laws and the government. What the government may or may not search is on a case-by-case basis. You come into one of these threads and people talk about a police state and how things are so much worse, but these have been the laws of our country for centuries and most of the major interpretations of the Fourth have been around since before people on the site were born. The government, by and large has been doing what the courts have said is constitutional for decades.

So you get FPP's like this one, which misstate the law as its been enforced for decades and people are all upset because they think they have the right to just waltz into the country and not be searched. That's not the case and it never has been.
posted by Ironmouth at 9:42 PM on January 13, 2011

Can someone explain how poking around in people's hardware when they cross the border makes any sense at all?

If you had some sensitive or illegal or immoral or whatever data you wanted to bring into the country, wouldn't you just put it in an encrypted file on the net somewhere and then download it after you'd crossed the border?
posted by straight at 11:58 PM on January 13, 2011

Many criminals are dumb, and lack self-awareness.
posted by anigbrowl at 12:54 AM on January 14, 2011

anigbrowl, your whole useless diatribe is predicated on the belief that he was randomly selected for inspection. He was singled out for harassment because of his political beliefs. No amount of rationalizing will make that fact less important.

Dragging Loughner in only proves the point that America is a police state. Police states don't act to protect the interest of ordinary citizens. They exist to protect the powerful from citizens. That's why Loughner had to kill a Congresswoman to get any sort of discussion of gun control laws out of Washington. They don't seem to care about the 60,000+ people who die from gun violence every year.

All Appelbaum has to do is publicly question US government policy, and he's subject to more scrutiny than someone who is obviously mentally ill and threatening ordinary citizens.

One of the most important aspects of a police state is that you are at the whim of the police. With more laws on the books that anyone in the government can actually count, you can be assured that you are breaking the law in some way at this very moment. You can also be assured that if you get in the way of the police, or of the powerful who direct them, you will find yourself swiftly on trial or behind bars. The USG doesn't execute or disappear people as often as China or Colombia, but that's a pretty pathetic standard to be proud of.d
posted by notion at 2:26 AM on January 14, 2011 [1 favorite]

He was singled out for harassment because of his political beliefs

When your political beliefs are considered to be treason by the government, that's kind of a grey area.
posted by smackfu at 5:33 AM on January 14, 2011

I'm afraid the going after careless or stupid criminal line doesn't hold water. Why not search laptops at the Walmart instead of customs?

Customs was created for economic & tax reasons. It continues today mostly for environmental & public health reasons. Information should not enter the picture.
posted by jeffburdges at 6:27 AM on January 14, 2011

Perhaps the lawyers and legal experts out there could who could shed light on the following items:

Was the "detention" an arrest. At what point does being held for secondary inspection constitute an arrest? Does your right to have an attorney present really only apply when arrest kicks in? If you juat let the confiscate the USB drives as the other items could you just leave invoking your 5th amendment rights? Can you just say here take it call me when your satisfied? Is there any case law on this?
posted by humanfont at 6:33 AM on January 14, 2011

anigbrowl, your whole useless diatribe is predicated on the belief that he was randomly selected for inspection. He was singled out for harassment because of his political beliefs. No amount of rationalizing will make that fact less important.

Dragging Loughner in only proves the point that America is a police state. Police states don't act to protect the interest of ordinary citizens. They exist to protect the powerful from citizens. That's why Loughner had to kill a Congresswoman to get any sort of discussion of gun control laws out of Washington. They don't seem to care about the 60,000+ people who die from gun violence every year.

I must disagree. I have to point out that you are misinformed.

First, all of these people have recourse to the courts. There are thousands upon thousands of section 1983 and Bivens lawsuits per year. In a police state, you cannot sue the police and the police do not shell out millions per year in settlements and verdicts.

Second, one is not at the "whim" of the police. Let's look at what actually happened. The person was entering the United States. All persons entering the United States are subject to search. This is the law. There is no Constitutional freedom to enter the country free of search. There never has been. In fact there is no country on Earth you may enter without being subject to search. The government is charged with stopping contraband and illegal goods. It finds these by searching persons, vehicles and ships entering the United States.

Third, the only reason this person is a cause celebre is because they are working with Wikileaks, a group heavily involved in the theft and dissemination of hundreds of thousands of classified documents. The party twittered that they were entering the United States, and so there was a group of CBP officers waiting to search them. It wasn't a random search. The government never claimed it was. Nor must the government only conduct random searches at the border. It may search any and every person. How else could it stop child porn, drugs, toys with lead, products made with slave labor or agricultural products that may carry exotic diseases harmful to American crops and plants?

Let us get this straight. Unless arrested for a criminal violation, from the beginning of the Republic, our border guards have been able to search anyone. In fact, there is not a country on the face of the earth that does not claim the power to search anyone entering the country of any kind. I have entered Ireland, the UK, Germany, Mexico, Canada and Denmark of late. Every one of those nations claims the complete right to search anything they please. If the US is a police state because it may search anything on your person, then so is every single state on the face of the planet.

I am a lawyer. I have litigated search and seizure cases before. You are massively misinformed. Please educate yourself on the laws of this country and the world before making sweeping claims that have no basis in fact.

Just because Glenn Greenwald tries to make you believe you have Fourth Amendment rights at the border does not make it so. He is playing a political game to get the people he wants freed out. And he will lie to you to gain your support.
posted by Ironmouth at 9:35 AM on January 14, 2011 [1 favorite]

That's why Loughner had to kill a Congresswoman to get any sort of discussion of gun control laws out of Washington. They don't seem to care about the 60,000+ people who die from gun violence every year.

The reason there are not enough gun control laws is because Americans do not want more. A CBS poll showed a 10% spike in support for more gun control. That still left it below the level of support for no change or reduction in gun control laws.

There's no huge conspiracy out there. Americans have dumb laws because they do not take their responsibilities as citizens seriously enough and vote for good laws.
posted by Ironmouth at 10:02 AM on January 14, 2011 [1 favorite]

I think people forget that just because its a democracy doesn't mean your opinion is the majority one.
posted by smackfu at 10:34 AM on January 14, 2011

Found this interesting article on rights at border crossing. Some points:

If you are subject to secondary inspection and not free to go without abandoning your baggage Miranda should apply per United States vs McCain. This one wonders if his request for a lawyer while in custody and the refusal to allow him to contact his lawyers was a violation of his civil rights. It isn't clear if he could have just abandoned the USB drives. It may also be that the fact that his obscured hard disks resulted in a reasonable delay given probable cause. So the issue would seem to come down to was he in custody. Since they said he wast he should have tried to leave and see what happened. Absent this it is hard to show he was in custody which is required to assert he was denied his lawyer while being interrogated.

It is also clear that CPB met the standard for reasonableness in the search. The individual is the spokesperson for an organization suspected of stealing US classified materials. Certainly it is possible he might have these stolen documents on him. The information from his Tweet that he was flying back from Iceland. There is potentially an argument to be made that his search was born out of ill will or a desire to delay, but good luck arguing that before the judge. The uSB hack could be seen as a bit of an attempt to confuse customs and cause the delay.

On the other hand the article claims that expanded 4th amendment search powers apply only to searches necessary to enforce laws that customs is designed to enforce. So intent of the search would seem to be legitimate for argument.

So it would seem that the ACLU lawyers will have to decide was he in custody, did he have a reasonable basis to think he was in custody when he asked to contact a lawyer. His blog seems to indicate he was under that belief, but also provides some evidence to the contrary. Second they must show intent was not normal customs search but alternate-- a nigh impossible task.
posted by humanfont at 11:29 AM on January 14, 2011

Could you simply argue the 4th amendment applies because customs was not designed to prevent information from entering the country. You'd need to examine the pre-internet case law covering every time some guy got harassed for brining a nude magazine into the country and such. As I said, customs exists for good reasons both historically and currently, but preventing Americans from accessing information non grata doesn't count afaik.
posted by jeffburdges at 1:01 PM on January 14, 2011

Several days ago, Twitter managed to unseal a DOJ subpoena for information on anyone following wikileaks or related individuals, including Jacob Applebaum (ioerror).

Everyone thinks Facebook silently acquiescing to a similar subpoena. Yet another reason for using Twitter over facebook.
posted by jeffburdges at 1:24 PM on January 14, 2011

> anigbrowl, your whole useless diatribe is predicated on the belief that he was randomly selected for inspection.

What gave you that idea? Nothing about it struck me as random, and I can't really see why CBP personnel would even bother upholding the pretense that it was. However, he is not being singled out for his beliefs or because he tried to bring information into the country, he's being singled out for his association with an entity that's lately been in the business of publishing classified information. When his name comes up on the CBP computer I imagine it has some heading next to it saying something like 'possible spy.' That requires rather more than a simple expression of support or an unpopular opinion. It does not justify abusing a person, as seems to have happened when he returned from a previous trip abroad.

I don't think you understand much of what I was writing about, and that you are somewhat out of touch with reality in general, going by your remarks about gun control. Although I'm European and have never understood or shared America's collective gun fetish, I can still see there's a second amendment that limits legislative action, and that the subject is frequently debated in legislatures and courts from DC to my backyard.

> I think people forget that just because its a democracy doesn't mean your opinion is the majority one.

People of all political stripes seem to think that saying 'we the people' is enough to establish majoritarian status. It's a propagandist's trick and I'm sick of it.
posted by anigbrowl at 5:50 PM on January 14, 2011

Anigbrowl, it clearly wasn't a random search, but they still have probable cause and authority search him given his association with an organization that is currently the subject of a probe by federal prosecutors. Searchnng for messages from couriers of hostile entities is within the rights of cpb. Even if one disagrees that wikileaks is hostile. I think if this was a member of the mainstream media or fox news there would be an epic shit storm with theme music and infographic.

Jeffbrudges, The assertion that there is some magic fourth amendment exemption over the free flow of information isn't accurate or supported. CPB tries to intercept communications to spies in the US, obscene materials and enemy propaganda. I believe they even looked for communist literature at one point, maybe they still do.

It may be that we want to expand our privacy protections at the border. This will take an act of Congress. The judiciary seems unlikely to overturn what are well established precedents, though in the wake of Heller anything is possible. Greenwald can assert some fantasy protection of the constitution ought to apply, but he isn't speaking in terms of practical legal ruling.

This is one of my major beefs with Greenwald. He is a lawyer and presents himself as an authority / expert and trustable information source. Here is is raising an issue, but doing so with inaccurate and incomplete information to make his political point. This incident isn't a sign of a rising police state. Nothing has changed in terms of your lack of 4th amendment protection when you go over the border. This case is unremarkable, except for the fact that it happened to someone who Greenwald likes and supports. The only reasonable call to action is to work for a legislative remedy, because the courts have been super clear on this and there is nothing in Appelbaum's account (wrt to the 4th amendment) to give Greenwald cause to state otherwise. I'm summary the information he provides is poor and inaccurate. I don't mins the bias as much as the manipulation and innacuracies.
posted by humanfont at 6:18 PM on January 14, 2011

First, all of these people have recourse to the courts. There are thousands upon thousands of section 1983 and Bivens lawsuits per year. In a police state, you cannot sue the police and the police do not shell out millions per year in settlements and verdicts.

This is a very poor definition of a police state. Stalinist Russia had a court system. The question is whether the court arrives at just outcomes. Given our skewed incarceration rates which largely punish the poor and/or the insane for being poor and/or insane, I don't think anyone can claim our justice system is doing a good job at anything but creating criminals, and having the highest per-capita incarceration rate in the Western world.

Second, one is not at the "whim" of the police.

Bull. Fucking. Shit. I've seen my father arrested because the public road we were on happened to be on Sea Island, and they stopped the car to harass us. When my father got upset with the rookie cop, he was arrested for resisting arrest (their favorite ace in the hole) and I had to walk 6 miles back to my house. Then he had to pay $75 (this was back in the 90s) to get his car back from impound. Then they held his license until the court date and would routinely pull him over because they knew they could write him another $15 ticket.

The same cop that stopped my friend and shook him down for $200 and a quarter ounce of weed later tried to sell it to me while he was in uniform outside of a local bar. And a year later when four cops were arrested by the Feds for dealing in uniform, he wasn't one of them.

Do I even need to get in to news story after news story about cops getting away with murder? Or beating up an inmate without repurcussions?

Do you think when you make $7.00 an hour you have the time or money to 1) hire a lawyer 2) and to go the hearings without losing your job 3) long enough to win the case? Maybe you practice law somewhere in Burbank or Salt Lake City where $200 an hour just trading that day's "snacks" so justice can get served. I don't doubt that it does. But out in the real world, the Law does not work for citizens. It works only for citizens with money.

Let's look at what actually happened. The person was entering the United States. All persons entering the United States are subject to search. This is the law. There is no Constitutional freedom to enter the country free of search. There never has been. In fact there is no country on Earth you may enter without being subject to search. The government is charged with stopping contraband and illegal goods. It finds these by searching persons, vehicles and ships entering the United States.

And when the government changes the Law to suit their needs to avoid getting warrants, and uses loopholes to harass people they can't properly collect evidence against because their detective work is non-existent and the only tools they have are intimidation and fishing expeditions, that violates the spirit of the Fourth Amendment, which says I am free of unreasonable searches and seizures. Now, I know it was sold out a long time ago, but it still means something to those of us who aren't paid to ignore it.

If the US is a police state because it may search anything on your person, then so is every single state on the face of the planet.

The US is a police state because the legal system is unjust, and the FBI and every other government agency is often used as a political policing tool, just like the KGB. I'm hoping you haven't forgotten the assassinations of civil rights leaders, or the constant entrapment and infiltration of political movements, or the provocateurs that continue to create crime to justify their bloated budgets and unconstitutional abuses.

I am a lawyer. I have litigated search and seizure cases before. You are massively misinformed. Please educate yourself on the laws of this country and the world before making sweeping claims that have no basis in fact.

I am a citizen of the United States well acquainted with the Constitution, the Founders, and the values of the enlightenment. You may sell your intellect for money and pretend that's a profession and further pretend that you are part of a just legal system. If you want to stop pretending, you could educate yourself by spending a single day out in the United States of America, well outside the wire of your suburban delusions.

Just because Glenn Greenwald tries to make you believe you have Fourth Amendment rights at the border does not make it so. He is playing a political game to get the people he wants freed out. And he will lie to you to gain your support.

I believe in the Fourth Amendment because it's in the Constitution. I believe targeting a US Citizen for search at the border because of what they have said publicly is an outrageous crime against the spirit and the letter of the Fourth Amendment.

And you couldn't pay me enough to give that up, because I'm not a lawyer, and my principles are not for sale.
posted by notion at 6:56 PM on January 14, 2011 [3 favorites]

Anigbrowl, it clearly wasn't a random search, but they still have probable cause and authority [...] It may be that we want to expand our privacy protections at the border. This will take an act of Congress.

Precisely. There are many laws that I think are flawed or unjust...but which only Congress can change. If it's been upheld by previous courts and the reasoning employed isn't obviously divorced from reality, then it's legal despite my disapproval of it.

Notion, I'm not going to argue with you any more. There's no point, because you ignore any evidence or logic that doesn't fit your personal opinion so it's essentially a religious argument. That's great political activism, but your arguments should be with Congress, not the Courts.
posted by anigbrowl at 9:15 PM on January 14, 2011

Notion you apparently arnt as acquainted with the constitution as you thought. See Article 3 Section 1 which gives judiciary power to the supreme court, not to individual citizens. You are crossing into Free Man of the Land / income tax resisters territory.
posted by humanfont at 5:05 AM on January 15, 2011

The Judiciary derives their authority from my consent. If I want to change the Law that the Supreme Court enforces by pushing for changes through voting and public action, that's well within my rights. It's actually the entire point of democracy.

Try again.
posted by notion at 10:48 AM on January 15, 2011

The Judiciary derives their authority from my consent. If I want to change the Law that the Supreme Court enforces by pushing for changes through voting and public action, that's well within my rights. It's actually the entire point of democracy.

Try again.

I'm telling you what the case law interpreting the Constitution says. You'll have to actually change the constitution to change that.

But how can the border controls work if they can't search you?
posted by Ironmouth at 8:52 PM on January 18, 2011

WikiLeaks has caused little lasting damage, says US state department
posted by homunculus at 9:49 AM on January 19, 2011