If I'm reading this correctly, this is only about grabbing someone's laptop when they are leaving the country. Does this in any way affect people who are entering the country?
Given the words "unique circumstances of this case," it is unlikely that this decision was intended to set precedent for anything.
It would appear that the court reiterates that searches and seizures at the border needed to be supported by reasonable suspicion, and the examination needed to be limited in scope and duration.
It seems like nothing in the statement would stop them from seizing your laptop for two months just because it has a BSD Beastie or a Linux Tux sticker on it. Remember, the suspicion only has to be reasonable to them.
Will this stop the next Border Patrol person from grabbing a laptop? Most definitely not. They can grab it, and then let the defendant wind his way through the courts. This isn't new, by the way; I remember going back all the way to Steve Jackson Games[1] that the government will seize the stuff willy-nilly, and then let you fight it out in the courts.
Violations of our basic rights will continue until there is tangible punishment for an LEO for doing so.
This is some of the best news, with the longest-ranging results that I've heard in a long time.
> Most definitely not.
It depends how information about this case gets disseminated. The sooner and wider it spreads, the more unacceptable it will be for rogue agents to overstep the law. After all, citizens can now sue for damages accrued while traveling without the laptop.
You may think that, but unless the effect actually travels down the chain of command, nothing will change.
Right now, it's probably beneficial or at least harmless for an LEO to seize a laptop without a justification that holds up in court. The same goes for their superior allowing or outright instructing them to do so. And so forth all the way up the chain.
There is no direct impact on the LEO who does it from the court decision that it was unjustified. Unless they or their superiors (or someone higher up the chain) are personally held accountable, why should anything change?
It's not a problem with individuals. It's a systemic problem and it needs a systemic solution. There have to be disincentives for someone at some level. Damages paid by the state don't cut it (unless those damages add up to a number high enough for someone to get annoyed by them).
I'm dealing with this right now. A cop wrote me a ticket for not having proof of insurance when it isn't a law in my state to carry it. DMV.org even says LEOs have access to a database where they can look up insurance.
But now I have to deal with going to court and I imagine I'll still pay a fine.
Really? In my state (Virginia), officers have to write the number or whatever of the statute that you are breaking when writing a ticket. Is there anything like that in your state?
Since folks seem confused here:
The feds can still grab your laptop at the border, temporarily, and search it, despite the techdirt headline.
There are a lot of court decisions that say they can, and none of those have been changed.
What happened here is
A. he was leaving the country, not entering it.
B. they confiscated his laptop for an extended period of time, moved it, searched it, etc.
"It is true that Kim’s laptop was seized at the border – in this case, LAX – but it was not even opened, much less searched, there. It was transported approximately 150 miles to San Diego, it was retained for a limited period of time, and eventually, the laptop was returned."
Your point A confuses me a great deal. In my experience with international flights, there's no border crossing as you leave, you just go through security as usual, sit around in an airport terminal that's usually shared with people taking domestic flights, then get on your plane. With the exception of a few airports with special arrangements, you hit customs after you land.
Does LAX have something weird here, or was he literally just sitting in an airport lounge along with people flying to Chicago or Houston or Kansas City and they seized his stuff "at the border" just because he was going to board an international flight? That seems completely mad.
At large airports most, if not all, domestic flights are not serviced in the international terminal for the very reason that once you're past security in the international terminal you are going to be subject to customs and border protection if you were to leave that secure area (recall departure and arrival share the same secure space)
In my experience this is extremely rare. I've flown into a lot of airports internationally over the years (offhand, Dulles, O'Hare, JFK, Paris de Gaulle, London Stansted, Heathrow, Madrid, Beijing, Cancun, Tokyo, maybe one or two more that I'm forgetting) and I don't think I've ever seen a situation like you describe. Madrid might have been like that, I can't quite recall, but the rest definitely weren't. Instead, you get offloaded into a special area that's only for international arrivals, where your only exit is through customs. Usually this is accomplished with a clever arrangement of locking doors, so that the same gate can then be used for boarding passengers without moving the plane.
Yes, this is the case for airports that offer "sterile transit" (making an international connection without formally arriving in the transit country). In that case, international passengers and domestic passengers would be segregate (with Schengen passengers treated as "domestic" in the Schengen area).
The U.S. doesn't offer this, seemingly as a matter of policy, something which really annoys international travelers -- it's one of the most-complained-about U.S. policies on sites like FlyerTalk, even by U.S. citizens (because you can easily spend 1-2 hours clearing immigration, customs, and security for an international flight connection in the U.S. even if you didn't intend to visit the U.S. at all).
But as a result, almost all U.S. airports have some departing international and domestic passengers in the same terminal at the same time, or potentially allow both international and domestic departures from any terminal.
I imagine it might come down to how much money the airline is willing to put into the necessary infrastructure. Paranoid security changes after 2001 might also have shut that sort of thing down.
Yeah, maybe an airline can say to the airport/CBP "we'll pay to rent a lounge/corridor/gates at this airport in this terminal for a sterile transit option between our flights or our partners' flights because some passengers want that" and maybe the airport/CBP can approve the proposal. (Maybe non-U.S. passport holders will still require an ESTA, but not a CBP examination?)
I think the specific option at LAX was post-2001, but you had to be on a specific pair of flights to take advantage of it. (I didn't do it, I just read about it on FlyerTalk and forgot the details.)
In the US, large international airports don't work that way.
Yesterday I had a purely-domestic itinerary out of Philadelphia -- which is an international hub for US Airways/American Airlines -- and while waiting on my flight I wandered in and out of the international terminal several times without facing any additional security (I like watching the larger planes come and go, and the lounge in that terminal is nicer).
Which is the standard way international airports work in the US. There is no concept of "once you cross this point, you have to clear customs again to exit the terminal" here.
I travel in and out of the country all the time (specifically LAX) and while there is no border/official check I do regularly see ICE agents checking passports while boarding.
Weird! I don't think I've ever seen anything like that in the US. Airline employees will often check passports and visas and such, but only to make sure you're actually allowed to enter the country they're taking you to. (The airline has to pay to fly you back if you get refused entry, so they want to make sure to catch such people early!)
Not casting doubt on what you say, I just haven't seen this myself. I've never flown internationally out of LAX. Only domestically once, and I hope it will be my last!
But they'd have to fly back early, which is an additional expense for the airline, at least potentially. Also I think they might be fined by the authorities too.
I researched this quite a bit for a guide I wrote on laptop border searches several years ago.
The U.S. government agencies with border search authority, especially ICE and CBP, claim the power to search both people who are arriving and departing the U.S. under that authority. They've decided to exercise this power much more regularly for arriving travelers than for departing travelers, in particular by physically making everyone pass through a CBP immigration and customs control checkpoint when they arrive in the U.S.
But they claim the power to do exactly the same kinds of examinations for people who are leaving the country; they just do this so rarely that they haven't built physical facilities to interview or search departing travelers on a large scale.
My impression is that they believe this authority commences when you begin the process of leaving the country, probably by checking in for your international flight. I don't know how that would work if you have a domestic connection prior to the international departure (if they would think they could perform a border search in the first airport or only in the second airport). Yes, that does mean that a CBP or ICE agent could come find you at the TSA checkpoint or, more likely, in the departure area or at your boarding gate and search or question you. This is true even if there are other passengers in the same terminal who aren't traveling internationally; whether the passengers are treated as subject to the border search authority could depend on where they're individually going, not just what physical part of the airport they're in.
I've never heard of this happening, but the agencies have policies for doing it.
"ICE and CBP, claim the power to search both people who are arriving and departing the U.S. under that authority"
Yes.
There are pilot programs at land borders requiring US citizens to submit to exit interviews and obtain permission to leave the country East Berlin-style. Searches on departure are being stepped up every year.
Recently in Atlanta the border cops were stopping everyone in the jetway boarding my international flight for an exit interview and search. They appeared to be looking for money and drugs and asked all of us in plain view to account for exactly how much cash we were carrying before we could be allowed to board. Since the place I was going and Atlanta are both known for petty robbery, I obviously didn't want to answer; the amount I was carrying was under the legal limit but enough to be worth stealing. The border cop was obviously annoyed and insisted on me saying the amount in front of everyone.
As long as police agency budgets shoot skyward and Americans are happy to submit to authorities, the sky's the limit.
The CBP is cooperating with Canada to exchange information at border posts in real time about whom to permit to enter or leave over land borders and pressuring Mexico to join. Tracking is already in place. Secret prohibition on leaving by air is already in place for selected persons.
That's all about tracking when visitors exit in order to find out who has stayed longer that they're allowed to, nothing about preventing US citizens from leaving. Unless I missed the pertinent bit? In which case, could you point it out?
I also looked at that testimony and it doesn't seem like the agreement proposes to prevent people from exiting.
The U.S. government seems to generally support UDHR article 13(2) ("Everyone has the right to leave any country, including his own, and to return to his country") and ICCPR article 12(2) ("Everyone shall be free to leave any country, including his own"). The no-fly list definitely can be a serious problem for this, although people on it often can leave by boat or overland -- though they might have trouble getting the money or necessary visas to do so.
When it comes to people overstaying their visas, I think the government wants them to leave. But they get barred from coming back, so the government wants to know about it, and they also want to track people leaving on time so they can know who's staying too long and hasn't left yet.
It seems like the government's willingness to spend money or create inconveniences in order to learn more about overstays has been pretty limited, and also that they care a lot more about overstays from poor countries than from rich countries. (I think some people in Congress are really upset about it, but it just doesn't look like the immigration authorities cares that much compared to the controls at the borders and ports of entry.)
Also, some incidents of investigating and attempting to deport overstays who were deeply integrated into communities and clearly doing super-productive things have led to bad PR for immigration authorities, which could be another reason those authorities are incentivized not to get too good at it (though influenced by factors like what part of the country, where the people have migrated from, what their socioeconomic status is, and others).
That permission can be removed doesn't mean permission has to be obtained.
There are procedures whereby I can be put in jail, removing my permission to leave the room where I've been forcibly relocated. But that doesn't mean I have to "obtain permission to leave the room" right now.
The no-fly list is utterly reprehensible, but it doesn't match what was said.
Because of the ongoing investigation, Kim’s name was in DHS’s case management system, which meant Special Agent Hamako would receive an automatic email if Kim was booked on a flight to or from the United States. Some time later, the agent received an email notifying him that Kim was going to return to the United States in November 2012, and that he would be departing LAX for South Korea on December 5, 2012. [...]
On December 5, 2012, working with a LAX duty agent and Customs and Border Protection officers, Special Agent Hamako conducted the planned search of Kim as he departed the country. First, he searched Kim’s checked luggage, which was located behind the check-in counter with Korean Airlines. [...]
Next, Special Agent Hamako stopped Kim on the jetway between the gate and the airplane as Kim was boarding his flight. He identified himself and asked Kim if he had any electronics, to which Kim responded that he had a laptop. Special Agent Hamako told Kim that he would be detaining the laptop pursuant to a border search and that he would return it once the search was complete.
There are usually no checks when you leave the country, but they do happen sometimes. Once when I flew out of Philadelphia, there were people at the jetway wearing some kind of uniforms, who asked to see everybody's passports. No idea what they were looking for.
I've been pulled off the jetway and had my entire carry-on searched just before boarding a plane a few years ago. They found nothing of interest and let me go on my way, but I'm still not sure if it was just random additional screening because they were bored.
I don't travel much international, like twice a year, but know dates in advance. I clone my drive and ship image encrypted ahead of my trip. I travel with laptop without hard drive in it.
This is of course, inconvenience, but not illegal. Many times they will ask me to "turn it on" to make sure this is not a bomb disguised as a laptop, but you don't need a hard drive to have BIOS flash on your screen.
Tonight someone invited me to give a talk at his business conference in NYC in front of 80 potential customers. I refused. I don't travel to US:
- I have porn on my computer, obviously not underage but what am I supposed to say if the border agent asks me "Is this subject underage?"
- I use a false name on Facebook. This is impersonation against an american interest.
- I've downloaded torrents. Even if I delete the files, I'm pretty sure there are footprints everywhere. Pretty sure there's jail time for piracy, and being my third offense in this list, I'm pretty sure it could be considered as a repeat offense.
There's a reason why we have a right to privacy. It's because everyone has very fluid limits on things that are forbidden, and everyone, including elected officials, breaks them. But not everyone is punished. So I'd rather not cross the US border.
Reminds me of how the DOJ keeps dropping cases anytime someone questions their sting ray tech. Seems like moving forward, the DOJ, is going to try their hardest to keep any of these cases from ever getting appealed anywhere near the supreme court. Even if it costs them a few cases here or there.
Unfortunately, this case carries no implications for arbitrary search and seizure (in many cases with no return of hardware and no recourse) of computers on arrival to the US. That has been the major point of controversy, vide Jacob Appelbaum.
"The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so. There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search – neither its location nor its scope and duration – that resembled a routine search at the border. The fundamental inquiry required under the Fourth Amendment is whether the invasion of the defendant’s right to privacy in his papers and effects was reasonable under the totality of the circumstances, and the Court finds that it was not."
The headline is misleading, and I shouldn't be surprised that techdirt didn't explore the language being used:
> After considering all of the facts and authorities set
> forth above, then, the Court finds, under the totality of
> the unique circumstances of this case, that the imaging
> and search of the entire contents of Kim’s laptop, aided
> by specialized forensic software, for a period of
> unlimited duration and an examination of unlimited scope,
> for the purpose of gathering evidence in a pre-existing
> investigation, was supported by so little suspicion of
> ongoing or imminent criminal activity, and was so
> invasive of Kim’s privacy and so disconnected from not
> only the considerations underlying the breadth of the
> government’s authority to search at the border, but also
> the border itself, that it was unreasonable.
Unless I'm reading it wrong, this is a very narrow ruling that can't really be used as precedent for other situations.
In this one unique case, DHS was told they were not justified in their actions. There's nothing in this language that says other seizures, in other circumstances, are not acceptable.
60 comments
[ 2.3 ms ] story [ 93.7 ms ] threadIt would appear that the court reiterates that searches and seizures at the border needed to be supported by reasonable suspicion, and the examination needed to be limited in scope and duration.
It seems like nothing in the statement would stop them from seizing your laptop for two months just because it has a BSD Beastie or a Linux Tux sticker on it. Remember, the suspicion only has to be reasonable to them.
Violations of our basic rights will continue until there is tangible punishment for an LEO for doing so.
https://en.wikipedia.org/wiki/Steve_Jackson_Games,_Inc._v._U...
> Most definitely not.
It depends how information about this case gets disseminated. The sooner and wider it spreads, the more unacceptable it will be for rogue agents to overstep the law. After all, citizens can now sue for damages accrued while traveling without the laptop.
Unless there is some penalty to be paid by the officers for breaking the rules, the abuses will continue.
If they start having to pay damages out of their personal assets or getting sent home without pay, they'll get the message.
Until that happens, the status quo will continue.
Right now, it's probably beneficial or at least harmless for an LEO to seize a laptop without a justification that holds up in court. The same goes for their superior allowing or outright instructing them to do so. And so forth all the way up the chain.
There is no direct impact on the LEO who does it from the court decision that it was unjustified. Unless they or their superiors (or someone higher up the chain) are personally held accountable, why should anything change?
It's not a problem with individuals. It's a systemic problem and it needs a systemic solution. There have to be disincentives for someone at some level. Damages paid by the state don't cut it (unless those damages add up to a number high enough for someone to get annoyed by them).
But now I have to deal with going to court and I imagine I'll still pay a fine.
Basically, they what the key to do the lookup in the DB by policy ID because their tables are not quite joined the right way... :)
- "No."
- "Alright. Please follow Officer Bob over here.", he said pointing to the huge guy who just started putting on a fresh pair of rubber gloves.
- "NEXT!"
- "Sir could you please let us look in your laptop?"
There are a lot of court decisions that say they can, and none of those have been changed.
What happened here is
A. he was leaving the country, not entering it.
B. they confiscated his laptop for an extended period of time, moved it, searched it, etc.
"It is true that Kim’s laptop was seized at the border – in this case, LAX – but it was not even opened, much less searched, there. It was transported approximately 150 miles to San Diego, it was retained for a limited period of time, and eventually, the laptop was returned."
They can't do that :)
Does LAX have something weird here, or was he literally just sitting in an airport lounge along with people flying to Chicago or Houston or Kansas City and they seized his stuff "at the border" just because he was going to board an international flight? That seems completely mad.
Is LAX different?
But it's not at all the way things work in US airports with international service.
The U.S. doesn't offer this, seemingly as a matter of policy, something which really annoys international travelers -- it's one of the most-complained-about U.S. policies on sites like FlyerTalk, even by U.S. citizens (because you can easily spend 1-2 hours clearing immigration, customs, and security for an international flight connection in the U.S. even if you didn't intend to visit the U.S. at all).
But as a result, almost all U.S. airports have some departing international and domestic passengers in the same terminal at the same time, or potentially allow both international and domestic departures from any terminal.
I think the specific option at LAX was post-2001, but you had to be on a specific pair of flights to take advantage of it. (I didn't do it, I just read about it on FlyerTalk and forgot the details.)
Yesterday I had a purely-domestic itinerary out of Philadelphia -- which is an international hub for US Airways/American Airlines -- and while waiting on my flight I wandered in and out of the international terminal several times without facing any additional security (I like watching the larger planes come and go, and the lounge in that terminal is nicer).
Which is the standard way international airports work in the US. There is no concept of "once you cross this point, you have to clear customs again to exit the terminal" here.
Not casting doubt on what you say, I just haven't seen this myself. I've never flown internationally out of LAX. Only domestically once, and I hope it will be my last!
The U.S. government agencies with border search authority, especially ICE and CBP, claim the power to search both people who are arriving and departing the U.S. under that authority. They've decided to exercise this power much more regularly for arriving travelers than for departing travelers, in particular by physically making everyone pass through a CBP immigration and customs control checkpoint when they arrive in the U.S.
But they claim the power to do exactly the same kinds of examinations for people who are leaving the country; they just do this so rarely that they haven't built physical facilities to interview or search departing travelers on a large scale.
My impression is that they believe this authority commences when you begin the process of leaving the country, probably by checking in for your international flight. I don't know how that would work if you have a domestic connection prior to the international departure (if they would think they could perform a border search in the first airport or only in the second airport). Yes, that does mean that a CBP or ICE agent could come find you at the TSA checkpoint or, more likely, in the departure area or at your boarding gate and search or question you. This is true even if there are other passengers in the same terminal who aren't traveling internationally; whether the passengers are treated as subject to the border search authority could depend on where they're individually going, not just what physical part of the airport they're in.
I've never heard of this happening, but the agencies have policies for doing it.
Yes.
There are pilot programs at land borders requiring US citizens to submit to exit interviews and obtain permission to leave the country East Berlin-style. Searches on departure are being stepped up every year.
Recently in Atlanta the border cops were stopping everyone in the jetway boarding my international flight for an exit interview and search. They appeared to be looking for money and drugs and asked all of us in plain view to account for exactly how much cash we were carrying before we could be allowed to board. Since the place I was going and Atlanta are both known for petty robbery, I obviously didn't want to answer; the amount I was carrying was under the legal limit but enough to be worth stealing. The border cop was obviously annoyed and insisted on me saying the amount in front of everyone.
As long as police agency budgets shoot skyward and Americans are happy to submit to authorities, the sky's the limit.
The CBP is cooperating with Canada to exchange information at border posts in real time about whom to permit to enter or leave over land borders and pressuring Mexico to join. Tracking is already in place. Secret prohibition on leaving by air is already in place for selected persons.
The U.S. government seems to generally support UDHR article 13(2) ("Everyone has the right to leave any country, including his own, and to return to his country") and ICCPR article 12(2) ("Everyone shall be free to leave any country, including his own"). The no-fly list definitely can be a serious problem for this, although people on it often can leave by boat or overland -- though they might have trouble getting the money or necessary visas to do so.
Also, some incidents of investigating and attempting to deport overstays who were deeply integrated into communities and clearly doing super-productive things have led to bad PR for immigration authorities, which could be another reason those authorities are incentivized not to get too good at it (though influenced by factors like what part of the country, where the people have migrated from, what their socioeconomic status is, and others).
There are procedures whereby I can be put in jail, removing my permission to leave the room where I've been forcibly relocated. But that doesn't mean I have to "obtain permission to leave the room" right now.
The no-fly list is utterly reprehensible, but it doesn't match what was said.
On December 5, 2012, working with a LAX duty agent and Customs and Border Protection officers, Special Agent Hamako conducted the planned search of Kim as he departed the country. First, he searched Kim’s checked luggage, which was located behind the check-in counter with Korean Airlines. [...]
Next, Special Agent Hamako stopped Kim on the jetway between the gate and the airplane as Kim was boarding his flight. He identified himself and asked Kim if he had any electronics, to which Kim responded that he had a laptop. Special Agent Hamako told Kim that he would be detaining the laptop pursuant to a border search and that he would return it once the search was complete.
(from https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cr0...)
There are usually no checks when you leave the country, but they do happen sometimes. Once when I flew out of Philadelphia, there were people at the jetway wearing some kind of uniforms, who asked to see everybody's passports. No idea what they were looking for.
Which is the point, by the way; most LEOs know people would rather pay a fine than deal with court.
I don't travel much international, like twice a year, but know dates in advance. I clone my drive and ship image encrypted ahead of my trip. I travel with laptop without hard drive in it.
This is of course, inconvenience, but not illegal. Many times they will ask me to "turn it on" to make sure this is not a bomb disguised as a laptop, but you don't need a hard drive to have BIOS flash on your screen.
- I have porn on my computer, obviously not underage but what am I supposed to say if the border agent asks me "Is this subject underage?"
- I use a false name on Facebook. This is impersonation against an american interest.
- I've downloaded torrents. Even if I delete the files, I'm pretty sure there are footprints everywhere. Pretty sure there's jail time for piracy, and being my third offense in this list, I'm pretty sure it could be considered as a repeat offense.
There's a reason why we have a right to privacy. It's because everyone has very fluid limits on things that are forbidden, and everyone, including elected officials, breaks them. But not everyone is punished. So I'd rather not cross the US border.
"The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so. There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search – neither its location nor its scope and duration – that resembled a routine search at the border. The fundamental inquiry required under the Fourth Amendment is whether the invasion of the defendant’s right to privacy in his papers and effects was reasonable under the totality of the circumstances, and the Court finds that it was not."
In this one unique case, DHS was told they were not justified in their actions. There's nothing in this language that says other seizures, in other circumstances, are not acceptable.