18 ms·

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

332 points by ulysses 11y ago

hackercurious 11y ago
I wonder if this will actually stop unjustified/unwarranted search and seizure at US borders.
- ascagnel_ 11y 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.
- tptacek 11y ago
  It will not; the border search exception is as old as the Constitution.
eyeareque 11y 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-border-zone-map https://www.aclu.org/know-your-rights-governments-100-mile-b...
- PopeOfNope 11y 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 http://www.newzjunky.com/news/0601massena_cameras.htm
- tptacek 11y 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 11y 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?
    - tptacek 11y ago
      I should say first: I have zero doubts that CBP, immigration, DHS --- whatever --- are pushing way past the bounds of what's lawfully allowed by the border search exception. Have you been forcibly searched at any of those checkpoints? There is a popular series of Youtube videos of drivers refusing to comply at some of these checkpoints.
      - eyeareque 11y ago
        Link to said youtube series?
thelogos 11y 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 11y 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 11y ago
    stolen equipment: https://www.youtube.com/watch?v=x00oGJb1KfI https://www.youtube.com/watch?v=x00oGJb1KfI
- venomsnake 11y ago
  Even better buy laptop at the location, use livecd to access your home machine.
- creshal 11y 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 11y 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.
izacus 11y 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 11y 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 11y 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 11y 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 11y 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 11y ago
    Oliver North had his laptop confiscated?
    - a3n 11y ago
      Where? By warrant? Personal or work? Link?
      - pjc50 11y ago
        Parent comment was making a joke: Oliver North was one of the people involved in the Iran-Contra affair illegally shipping arms to Iran in the 80s while also supporting terrorism in Nicaragua.
        a3n 11y ago
        I was self-aware at the time. :) I might have realized that laptops weren't in common use at the time. I remember his secretary Fawn Hall smuggled documents out in her boots for him. How old school. https://en.wikipedia.org/wiki/Fawn_Hall https://en.wikipedia.org/wiki/Fawn_Hall
regularfry 11y 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 11y 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.
  - talmand 11y 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 11y ago
  Like parallel construction but hyper-threaded.
  - cryoshon 11y 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?
    - regularfry 11y ago
      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.
CPLX 11y 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 11y ago
  FileVault is closed source, so there is no guarantee that Apple doesn't have a backdoor built into it.
  - brandon272 11y 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.
    - tantalor 11y ago
      You would get a gag order to prevent disclosing such a vulnerability.
      - brandon272 11y ago
        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.

332 points by ulysses 11y ago

hackercurious 11y ago

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

ascagnel_ 11y 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.
tptacek 11y ago
It will not; the border search exception is as old as the Constitution.

eyeareque 11y 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-border-zone-map https://www.aclu.org/know-your-rights-governments-100-mile-b...

PopeOfNope 11y 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 http://www.newzjunky.com/news/0601massena_cameras.htm
tptacek 11y 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 11y 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?
  - tptacek 11y ago
    I should say first: I have zero doubts that CBP, immigration, DHS --- whatever --- are pushing way past the bounds of what's lawfully allowed by the border search exception. Have you been forcibly searched at any of those checkpoints? There is a popular series of Youtube videos of drivers refusing to comply at some of these checkpoints.
    - eyeareque 11y ago
      Link to said youtube series?

thelogos 11y 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 11y 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 11y ago
  stolen equipment: https://www.youtube.com/watch?v=x00oGJb1KfI https://www.youtube.com/watch?v=x00oGJb1KfI
venomsnake 11y ago
Even better buy laptop at the location, use livecd to access your home machine.
creshal 11y 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 11y 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.

izacus 11y 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 11y 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 11y 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 11y 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 11y 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 11y ago
  Oliver North had his laptop confiscated?
  - a3n 11y ago
    Where? By warrant? Personal or work? Link?
    - pjc50 11y ago
      Parent comment was making a joke: Oliver North was one of the people involved in the Iran-Contra affair illegally shipping arms to Iran in the 80s while also supporting terrorism in Nicaragua.
      - a3n 11y ago
        I was self-aware at the time. :) I might have realized that laptops weren't in common use at the time. I remember his secretary Fawn Hall smuggled documents out in her boots for him. How old school. https://en.wikipedia.org/wiki/Fawn_Hall https://en.wikipedia.org/wiki/Fawn_Hall

regularfry 11y 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 11y 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.
- talmand 11y 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 11y ago
Like parallel construction but hyper-threaded.
- cryoshon 11y 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?
  - regularfry 11y ago
    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.

CPLX 11y 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 11y ago
FileVault is closed source, so there is no guarantee that Apple doesn't have a backdoor built into it.
- brandon272 11y 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.
  - tantalor 11y ago
    You would get a gag order to prevent disclosing such a vulnerability.
    - brandon272 11y ago
      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.