DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border

[afv011]

Originally Posted by pdurrant

Indeed. This applies to any law enforcement officer. Much, much better to say nothing than to lie.

Lying by omission is still lying, isn't it?

[Lutraa]

Respectfully stating that you refuse to answer is not lying by omission. In the USA, a court can compel you to answer the government's questions; a federal, state or local law enforcement officer representing the government cannot. They can still arrest you, of course, but need reasonable suspicion to do this, and you can get a court to review whether your arrest was justified. In contrast, DHS says they don't need any suspicion to take your device from you at the border.

Frankly, I'm surprised these basic civil rights are news to so many US citizens . . .

[SeaKing]

Originally Posted by afv011

Lying by omission is still lying, isn't it?

No, unless a court has compelled you to tell the "whole truth." Even there, it is tricky. If you say it is A, B, C, E, F and neglect to mention D you will usually be ok unless specifically questioned on D.

Second, you can always say "that is all I can say without conferring with my lawyer." The explicit threat law enforcement has is well "we will have to detain you while we investigate." They can always do that.

The trick is to say, No, I don't want to go to the station, are you arresting me or charging me, and if so I want a lawyer.

Likewise I like the "No, I don't think there is any reason for you to search my case, and you do not have my permission to do it."

Sure they can search it or seize it, because they got the firepower, but you are better off legally.

[DianNC]

Hmmm. I wonder if the 5th Amendment is also moot in the 'constitution-free' zone.

[Sil_liS]

Originally Posted by HansTWN

Sil_lis, that is a big misunderstanding, I definitely did not mean to imply that it is ok, just the opposite.

The written word lacks the complexity of spoken language.

Originally Posted by DianNC

Oh. I bet that's never been done before.

Has it been done before? What happens if nothing is found? Do the owners get a new car?

Originally Posted by Lutraa

1) Never, ever lie to the Border Patrol. If you do and they find the SD card or whatever you're trying to hide, you are in big trouble. You already have the right to refuse to answer questions. Use that right instead of committing the crime of knowingly making a false statement.

This wasn't the point of my comment. I'm not talking about random people becoming paranoid and hiding the unanswered emails from their mothers. I'm questioning the effectiveness of this approach in catching bad guys.

Originally Posted by Lutraa

2) So, the guide is 14 months old. Did you read it? Are there things in it that are no longer true? I think the examples of travellers who might want to avoid hassles are still relevant (e.g. journalists researching stories on America's "enemies" and medical professionals who are required by US law to protect patient record privacy) and the techniques for ensuring you aren't carrying any such data on electronic devices upon entry/re-entry to the US are still sound.

The guide seems to say that people can choose not to divulge the passwords. The article in the OP is saying that people can be ordered to give their passwords.

Originally Posted by Lutraa

Most of us have no sensitive data on our eReaders or laptops, but it could still be a serious inconvenience to have these devices confiscated for days or weeks. Anyone who has already been mistakenly fingered on DHS watch lists -- and these databases are notoriously rife with uncorrected errors -- might want to take some of the precautions recommended in the EFF guide in order to head off the hassle of losing their laptop on the way to a conference, or their eReader at the start of a vacation.

Look at the problem from this perspective: what exactly is stopping bad guys from following the same procedure?

[Lutraa]

Originally Posted by Sil_liS

The guide seems to say that people can choose not to divulge the passwords. The article in the OP is saying that people can be ordered to give their passwords.

Look at the problem from this perspective: what exactly is stopping bad guys from following the same procedure?

You do understand that in the Western countries most of us live in, there's such a thing as procedural due process, right? Following that process instead of rushing to judgment and punishment (by cops, with no court involvement) does sometimes result in letting the guilty go free. We've collectively decided that's a better result than giving the police too much power over us.

Yes, in the USA, the Border Patrol can "order you" to divulge your password. No, they cannot physically force you to do this and if they arrested you for non-compliance, you would have recourse to the courts. I believe the 5th amendment would protect US citizens in this case. There are also precedents in some federal districts that say they can take your property but that CBP cannot prevent a US citizen from re-entering her or his own country.

It's true that if the "bad guys" (e.g. those with kiddie porn on their computers) follow the recommendations of the EFF guide I posted (e.g. by using remote servers to back up their data and bringing only "clean" HDDs across the border), they, too can avoid detection. I don't support kiddie porn but that doesn't mean I'd be OK with you changing the law and Constitution to make it legal for CBP to use thumbscrews in order to force me to access my Dropbox for their perusal.

[forsooth]

I cross borders
best not have sensitive documents on computer
store on internet
use encrypted sat phone if no isp no cell

on computer have 1 document only protected with password "guest"
big complex and interesting and technical document but not sensitive not secret
satisfies searcher- happy found something for read
can not understand but happy

important not have information of specific country visit in protected document
so avoid trouble- not spy

others methods- not discuss

[Sil_liS]

Originally Posted by Lutraa

You do understand that in the Western countries most of us live in, there's such a thing as procedural due process, right? Following that process instead of rushing to judgment and punishment (by cops, with no court involvement) does sometimes result in letting the guilty go free. We've collectively decided that's a better result than giving the police too much power over us.

Yes, in the USA, the Border Patrol can "order you" to divulge your password. No, they cannot physically force you to do this and if they arrested you for non-compliance, you would have recourse to the courts. I believe the 5th amendment would protect US citizens in this case. There are also precedents in some federal districts that say they can take your property but that CBP cannot prevent a US citizen from re-entering her or his own country.

I'm not a US citizen.

Originally Posted by Lutraa

It's true that if the "bad guys" (e.g. those with kiddie porn on their computers) follow the recommendations of the EFF guide I posted (e.g. by using remote servers to back up their data and bringing only "clean" HDDs across the border), they, too can avoid detection. I don't support kiddie porn but that doesn't mean I'd be OK with you changing the law and Constitution to make it legal for CBP to use thumbscrews in order to force me to access my Dropbox for their perusal.

I'll say it again: this is ineffective.

[tompe]

Originally Posted by Lutraa

You do understand that in the Western countries most of us live in, there's such a thing as procedural due process, right?

Well, that concept taking the US meaning do not exist in British law for example (See the wikipedia entry for due process). It totally annoys me in science fiction TV-series (like Babylon 5) that they use internal US concepts like due process probably because the writer thought they were universal.

[CallOfCth'reader]

Originally Posted by frahse

Likewise in NY, for guns or large magazines!

That confused me for a while, because I couldn't work out why large format print media would be illegal.

[derangedhermit]

Originally Posted by Kali Yuga

It should also be fairly clear that the 4th Amendment hasn't been suspended in all of Boston, New York City, Philadelphia, Los Angeles, etc. Illegal searches are not being reinstated en masse because of this policy, which by the way has been found constitutional by the Supreme Court.

If this is a policy Americans don't want, then we should try to get rid of it. That doesn't justify hyperbolic claims about the policy.

The 4th amendment has indeed been suspended in some ways (those that follow under the DHS regulations) in all those cities. DHS is not currently prioritizing those cities for executing their policies. The 100-mile thing is for the Border Patrol - the ICE agents can operate everywhere in the US.

People often think of the border as a line, and it is, for some purposes. For DHS purposes, the border extends well back into US territory. I imagine they are hoping to find intelligence jackpots on someone's hard drive. (Intelligence on illegal drug or other smuggling, or terrorist operations. Maybe even illegal immigration, but that's probably less vital to them.)

If they find purchased but de-DRMed e-books on my PC or tablet, I guess they can bust me if they want to. I doubt they are looking now, but if they win the drug war, slow illegal immigration to the extent they want to, and terrorism becomes a non-issue, maybe things like software or books or movies or music will move up the list of things they'll grab you for.

[frahse]

Originally Posted by forsooth

I cross borders
best not have sensitive documents on computer
store on internet
use encrypted sat phone if no isp no cell

on computer have 1 document only protected with password "guest"
big complex and interesting and technical document but not sensitive not secret
satisfies searcher- happy found something for read
can not understand but happy

important not have information of specific country visit in protected document
so avoid trouble- not spy

others methods- not discuss

Most excellent advice. Most excellent!!

[frahse]

Originally Posted by CallOfCth'reader

That confused me for a while, because I couldn't work out why large format print media would be illegal.

Good thing, I didn't mention Teflon coated bullets, or you would be checking your "Power Point" Program.

[cghipp]

Originally Posted by Apache

I live in South Georgia and I am in this zone.
And I live more than 100 miles from any coast.
Apache

I was going to say, the "zone" on this map is lot more than 100 miles. I used to live in Columbia, SC, and it's about 150 miles due east to North Myrtle Beach.

[teh603]

Originally Posted by derangedhermit

People often think of the border as a line, and it is, for some purposes. For DHS purposes, the border extends well back into US territory. I imagine they are hoping to find intelligence jackpots on someone's hard drive. (Intelligence on illegal drug or other smuggling, or terrorist operations. Maybe even illegal immigration, but that's probably less vital to them.)

Side note- at one point, a "trusted" source was claiming that the Mexican government had seized land from the Rio Grande to the Nueces in Texas, and the Mexican army was enforcing Mexican law. How's that for border issues?

If they find purchased but de-DRMed e-books on my PC or tablet, I guess they can bust me if they want to. I doubt they are looking now, but if they win the drug war, slow illegal immigration to the extent they want to, and terrorism becomes a non-issue, maybe things like software or books or movies or music will move up the list of things they'll grab you for.

I really doubt the average DHS officer is going to know what to look for, or have relevant account access.

Like I said, they've got bigger issues on their mind than a few possibly bootlegged MP3s and ePubs.