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Author Topic: Federal Agents Assume Right to Seize Laptops at Border
TCB
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Link

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WASHINGTON (Reuters) - U.S. federal agents have been given new powers to seize travelers' laptops and other electronic devices at the border and hold them for unspecified periods the Washington Post reported on Friday.

Under recently disclosed Department of Homeland Security policies, such seizures may be carried out without suspicion of wrongdoing, the newspaper said, quoting policies issued on July 16 by two DHS agencies.

DHS officials said the policies applied to anyone entering the country, including U.S. citizens, and were needed to prevent terrorism.

The policies cover hard drives, flash drives, cell phones, iPods, pagers, beepers, and video and audio tapes -- as well as books, pamphlets and other written materials, the report said.

This is one of those stories that would have outraged me a few years ago. But today I can barely muster up the energy. I'm curious - how do the people of Ornery react to this? Love it, hate it, hate it but think it's necessary? Think it's nothing to get excited about? Something else?
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TommySama
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This seems painfully invasive. If they suspect you of a crime.. shouldn't they arrest you and get a warrant for your electronics?
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JoshuaD
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That's bad. [Frown]
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Everard
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Its entirely unconstitutional. I hope someone challenges it and hires a good lawyer... and by good lawyer I mean someone who can pull scalia, thomas, alito, and roberts, out of their own collective bungholes.
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RickyB
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That is ****insane****. Cry, beloved country.
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TheSteelenGeneral
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While bush as a person doesn't get a pass anymore from the MSM, his police-state policies still get one, from the public and MSM alike. I guess Bin Laden, Stalin and Hitler won the war after all.
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hobsen
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quote:
I have personal knowledge of DHS folks visiting intellectuals over books. I know an Arab-American professor who was doing development work in the Middle East who shipped back some Arabic books, some of them on water and sewage systems. These were intercepted at customs and he received a visit from two agents who questioned him about the books. They were, of course, innocuous, and he had been working on a USG contract!
Customs has always claimed the right to stop printed material coming from abroad, even if it would be perfectly legal to publish in the Unitd States. Extending that to laptops or whatever should be no surprise. Having your machine seized is certainly a nuisance to those who try to take one across the border, but it will probably be upheld by the courts. On the other hand, I can think of about fifty ways in which terrorists could get book length communications into the United States with Customs being none the wiser.
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Dave at Work
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<heston-voice>They can pry my electronics from my cold, dead fingers.</heston-voice>

Well, I don't know if I would let them kill me over it, but I would certainly take them all the way to the Supreme Court if they tried it with me. Even if that meant that I was in debt for the rest of my life for the legal bills.

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TommySama
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Seems silly, as you can fit over 10 gigs of information on a micro-SD chip, literally the size of your finger nail (like $80.)
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Gaoics79
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quote:
Its entirely unconstitutional. I hope someone challenges it and hires a good lawyer... and by good lawyer I mean someone who can pull scalia, thomas, alito, and roberts, out of their own collective bungholes.
Speaking of lawyers, it's a potential pain in the ass for lawyers crossing the border, knowing that at any time, customs and immigration officials can read your privileged documents at their whim.

quote:
Seems silly, as you can fit over 10 gigs of information on a micro-SD chip, literally the size of your finger nail (like $80.)
Yeah, and they have this thing now, called the "Internet" that allows people to send information across the U.S. border electronically, without ever physically leaving their countries.
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Everard
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"Speaking of lawyers, it's a potential pain in the ass for lawyers crossing the border, knowing that at any time, customs and immigration officials can read your privileged documents at their whim."

Or anyone doing any sort of business traveling.

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hobsen
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If a lawyer is representing someone at Guantanamo, he would not be happy with Customs providing the prosecutors with everything on his laptop relating to his defense strategy. In cases involving the vague area of "national security" this is very likely to happen.
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Redskullvw
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Not so much an assumption of the right to seize laptops. Rather, a nice editorialized headline.

Customs has had the right to inspect and impound anything entering the country or departing the country since its inception. Aside from diplomatic pouches, passports, and some classifications of postage under the international postage compact- customs has always had the right to detain, confiscate, inspect, or impound essentially anything it wants on whatever pretense or lack of pretense it wills.

But the again the original story is from the Washington Post. So no Bias or agenda was likely. But it certainly is neither a factually complete article or even based upon a truthful interpretation of actual events.

A better headline would have been, "U.S. Customs Agents continue their 200 year old mandate to seize and inspect anything- including computers."

But then that doesn't fit in with the whole Patriot Act stole our liberties argument.

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RickyB
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So you claim customs isn't bound by the 4th amendment? I'm assuming you can back that up.
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TCB
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Red, I agree with you from a legal standpoint. Courts have consistently upheld that the government can take pretty much anything it wants from people at the border.

But having a legal right to do something doesn't justify its use. I imagine police could legally single you out without suspicion and covertly follow you to every public place you go, but it's not the kind of thing we expect in a free country. Do you agree that tailing innocent people would be crossing the line?

I think that seizing citizens' laptops without suspicion, holding them indefinitely, and presumably copying hard drives and sharing them with other officials is also crossing the line. It may be that we just draw the line in different places.

Anyway, I'm actually not that outraged about this either. I just wonder if that's because I have "outrage fatigue" from the erosion of other, more important liberties.

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Redskullvw
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The customs house has always had, and unless constitutional law is changed on this matter, the right and privilege to detain any, all, some, none, of anything coming into or leaving the physical borders of the United States and its formally organized territories.

This right does not extend to diplomatic packets, some internationally defined types of mail, and the detaining of passports without criminal cause.

So yes, as it stands right now, if a citizen or non-citizen is entering the or leaving the physical border of the United States, they are subject to virtually any detainment of property they may have on their person or in their control for whatever reason the customs agents deems appropriate.

Can they detain the PERSON? not if they are indeed a legal citizen.

So while you may think this is unreasonable search and seizure or detaining of a person, it isn't. It is generally upheld on the basis that Congress and the Executive have the legal authority to determine transit across our borders and that there is a general benefit to the several states in having a single authority enabled to limit any illegal materials entering the country- or leaving for that matter.

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RickyB
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So customs can take your briefcase, waltz into a courtroom say "no, we don't suspect him of anything, we just feel like it" and the court will uphold it? You got case-law to back that up from before 2001?
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Redskullvw
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TCB

"I imagine police could legally single you out without suspicion and covertly follow you to every public place you go, but it's not the kind of thing we expect in a free country. Do you agree that tailing innocent people would be crossing the line?"

Of curse that would cross the line because such activity defies the 4th.

The again that type of activity would be taking place inside the territory of the United States, and if you are a citizen or legal alien in the country you are protected from such an infringement upon your constitutional rights.

I was commenting upon Ricky's red herring. As to being outraged by it, there isn't anything to be outraged about because this is how it has been for 200+ years in our country, as well as most other European based governments in the rest of the world. One of the reasons why the issue of passports, diplomatic pouches, and the International Postal Union Agreement, is so that the customary and usually broad powers of custom houses across the entire globe would not become so abusive to diplomacy, travel, and communication that world commerce and peaceful exchange would be threatened.

Fact is customs across the globe does this. There isn't anything out of the ordinary about the activity. And in that sense a memo to DHS to be more interested in computers isn't really anything at all. Honestly if they issued a directive to pay more attention to plastic pink flamingos, the same degree of noteworthiness would accrue to the memo. Nothing would change other than the then current focus of customs.

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Redskullvw
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Ricky

Do you understand what customs even is?

And to answer your question, as you are entering or leaving a Port Authority, the customs agents may for whatever reason remove your property and detain it for whatever reason they wish until they are satisfied that there is no compelling reason for them to continue holding your possession in the customs house.

You can take it to court to complain. But the only thing the court can compel the customs house to do is to make your property's investigation a priority over all other investigations.

So yeah if they wanted they could take your briefcase for whatever reason they wanted to and wouldn't have to waltz into any court to justify it at all.

That is how customs has worked since they were set up in England, and it is how American colonial, and later state and federal customs houses function since our country's independence.

As for case law, even John Jay went with this as a non-brainer.

Being an expat, I would have thought you would have been aware of this.

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RickyB
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"You can take it to court to complain. But the only thing the court can compel the customs house to do is to make your property's investigation a priority over all other investigations."

You seem to be missing the novelty of the new policy/rule. If before you had recourse - you could go to a court which could tell customs to hurry up checking your stuff, and ultimately order customs to release your property if it didn't show cause, now, from the text above, there isn't even that.

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Redskullvw
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Ricky examine this,

US customs officials have Always had the power to seize ANYTHING at the border, and hold such seized items for however long they deem necessary without ever defining the period of time required to investigate the seized items.

So sentence one of the quoted article reveals NO CHANGE.

In Sentence Two, Customs has ALWAYS had the power to seize or detain anything regardless of any suspicion of wrongdoing or criminal activity.

Sentence Two indicates NO CHANGE in previous customs policy.

Sentence Three, again indicates no change of any legal basis, since as has always been the case, anyone entering the country has ALWAYS been subject to these legal powers of Customs.

And Sentence four might as well include any conceivable item of real property that exists under the sun. Because Customs has the right to seize inspect or detain any real property it wishes- including intellectual property.

So exactly what has changed? Nothing.


The rules are the same as they always have been. The only notable change is that Customs is following the DHS directive to pay closer attention to computerized data storage media & computers.

Again, it is a Washington Post article that uses a sensationalized headline and depends upon the ingrained ignorance of its readers to enable the paper to masquerade an agenda editorial as a news item.

I am kind of shocked that you fell for it.

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hobsen
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The United States Bureau of Customs and Border Protection merely has authority to hold items entering or leaving the country for a reasonable period to determine whether they are harmful or illegal. That does not change ownership, and a court can order things returned if they are being detained for no good reason or for an unreasonable length of time. Only if the item is actually illegal can they hold it permanently.

Redskullvw, I wrote this before reading the post above where you assert the opposite. As I recall, in the case of various books, courts ordered Customs to stop seizing them as obscene or seditious. So far as I know Customs does not have powers superior to the courts. But my understanding of the law may be wrong, so do you have a citation?

[ August 02, 2008, 04:21 PM: Message edited by: hobsen ]

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Redskullvw
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hobsen

100% correct.

And again, nothing has changed whatsoever, despite the editorializing of the Washington Post.

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Lyrhawn
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Yeah, this is nothing particularly new, it's just a particularly galling example of a power that has existed for at least a 100 years and has been reaffirmed by several court cases at the US Supreme level as well as the circuit court level.

That doesn't mean I agree with it, as I think this particular seizure, or the seizure of any media storage device without probable cause is a violation of the spirit and for that matter the letter of the 4th amendment. You aren't allowed to enter someone's home for no reason and rifle their their documents, and in that vein, I don't think you should be able to rifle through a device or storage device that could concievably hold every document you have in your home.

And for that matter, this is just a stupid way of trying to catch a terrorist. Anyone with half a brain, scratch that, anyone with any brain matter at all, and we know terrorists aren't stupid, would either just send the laptop First Class Mail, where they couldn't get to it, or they'd mail a flash drive to themselves, or they'd email an attached doc, or they'd dump the data at an online storage site. There are so many quick and easy ways around this that I don't think this power is justified, especially given the massive invasion of privacy it potentially means.

But, I can't fault the 9th based on precedent. This needs to go up a level.

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Redskullvw
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Hobsen

didn't notice the edit of your post.

We are talking about two separate things. Customs still can seize anything- including the seditious /pornographic/ what ever offends small minded people item they want. And in the terms of things like a Joyce novel, the court defined not that the customs does not have the right to seize and inspect such items, but that there is no compelling reason for them to do so as in the instances of such property, the determination of the social morality of such items is beyond the scope of powers attributed to customs. That is why all those racy novels from last mid century are now freely on your library shelf.

In essence the courts have said that as far as Customs is concerned their right to seize & investigate remains standing, but the need to investigate items on the bais of morality is no longer a valid reason for permanent seizure under the guise of indeterminate investiagtion periods.

So yeah they can seize your porn shipment, but unlike in the past where they simply kept it and did nothing, now they have to get over their prudishness and let you contiune on your way with such property because there is no Federal Law that prohibits your porn being legally possessed.

On the other hand, if you are entering the USA at a port of entry, and you possess child porn, and the possession of such porn was not against the country's laws you departed from, such items Could be detained from your possession. However you could ask the invesitgation to be expedited to conclusion and have the stuff returned to your original port of departure without having to fear any criminal prosecution. With a small caveat. You'd have to declare that you have it upon entering customs.

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Paladine
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The 4th Amendment protects against unreasonable searches and seizures. Few people would argue that searching someone's luggage and person as they cross a national border is anything but reasonable. Computers contain information and capabilities which can't be analyzed by an optical scan, and so, given the right set of circumstances, holding them for a time pending investigation seems perfectly reasonable to me.

What's the outrage here?

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cherrypoptart
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If the government can hold items until they determine there is nothing illegal about them, and there can be hundreds of gigs of data on laptops to sift through and even more on an external hard drive, it only makes sense that these items may have to be held for quite a while to ensure there isn't anything illegal on them.

Why would someone think that quantity of data could be assessed in the time it takes someone to go through the lines at the airport or during the wait times for the airplanes? Are the lines and wait times really that long?

Not meaning to put it too bluntly, but this just seems like people upset because our national security isn't as compromised as possible.

As to all the other ways around it, sure, there are some. Just like there are other ways around border check points. There are ways around just about everything. It doesn't mean you stop trying. People like to give up too easily.

[ August 02, 2008, 05:33 PM: Message edited by: cherrypoptart ]

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TCB
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TCB said:
quote:
I imagine police could legally single you out without suspicion and covertly follow you to every public place you go, but it's not the kind of thing we expect in a free country. Do you agree that tailing innocent people would be crossing the line?
And Redskull replied:
quote:
Of curse that would cross the line because such activity defies the 4th.
The Fourth Amendment protects people from being followed in public places? I'm no lawyer, but that doesn't sound right to me.

Let me try another example, though, since my goal is to show there are some powers which the government can legally exercise, but that they shouldn't exercise. The Constitution gives the federal government the right to collect income taxes. They could conceivably tax the highest income brackets 100%, but most of us would consider it a gross example of the government overstepping its power. Another example - my city sets up DUI checkpoints on busy roads during weekend nights. They could set up DUI checkpoints during morning rush hour traffic, too, but we would find it extreme and wrong (especially if it made us late to work).

I reject this argument that if the government exercises a right that it legally can exercise, that no one has cause to be upset by it.

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KnightEnder
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"Aside from diplomatic pouches,"

Ha, ha. I'm sure our enemies, you know foreign countries would never use those to transfer sensitive data. No,there going to put it on my computer or Blackberry. Or like Jason said; use the internet. Plus, stuffing carefully wrapped memory sticks up your ass has to be safer than doing the same with heroin in condoms.

This is incrdibly stupid and invasive.

If we guy the country we are trying to protect so badly that we no longer recognize it what is the point?

KE

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RickyB
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As long as there is legal recourse, then maybe nothing has changed legally. What most likely has changed is application. Customs are going to the mat with cases they didn't use to.
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G2
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What we're talking about here is the border search exception of the 4th Amendment. This exception was actually authorized by the first congress - so as Redskullvw pointed out it's been around as long as the United States has been around; there is nothing new here.

The border searches fall into 2 categories: routine and non-routine. Routine searches require no suspicion of criminal activity and can be done for any reason or no reason at all. We've all aware of them and anyone that's traveled abroad has experienced it. Routine searches can include the contents of your pockets, a search of your car, briefcase, luggage, etc. Anything that is not personally invasive (e.g a body cavity search) is considered routine. What is marginally new here is that the laptop computer is considered to fall under a routine search just like all those other things we've been allowing for 200+ years.

Even detaining people for extended times can be routine. For example, if the customs agent thinks you may have swallowed some drugs they can hold you until you pass them through the digestive system - even if they give you something to *help* the process along (yuck). This is routine and has been going on for many years.

Non-routine inspections require a reasonable suspicion of criminal activity - but not a warrant; that should freak some people out. The idea a customs agent can drag you into the back, tell you to drop your pants and dig into your orifices just because he thinks you're up to something seems like a crazy obvious violation of rights. The courts have ruled it's not for a couple hundred years.

All that being said, has anyone here ever had what they considered a unreasonable search at the US border? I travel internationally several times a year and never once have I seen anything I thought was out of line and nobody I know has either. Not saying it won't happen but it's rare. My guess is if the agent goes for something pretty extreme in the search department he better be damn sure of the suspicion - and I seriously doubt it's all on one agent's suspicion alone. I'm certain a few people are in on the decision to strip search and would have to agree to it being reasonable.

For an excellent synopsis of the whole deal, see this.

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RickyB
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Again: Is there, or is there not, judicial oversight of customs? Can a court force customs to release held property? If so, all is well. What I get from the news article, tho, is that customs is now asserting the right to blow courts off.

Get it through your heads, people: Absolutely no recourse for any kind of major harm done is a recipe for CERTAIN abuses.

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G2
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quote:
Originally posted by RickyB:
Again: Is there, or is there not, judicial oversight of customs? Can a court force customs to release held property? If so, all is well. What I get from the news article, tho, is that customs is now asserting the right to blow courts off.

Get it through your heads, people: Absolutely no recourse for any kind of major harm done is a recipe for CERTAIN abuses.

There is judicial oversight, tons of it in case law with ample precedent. It's just not ruling the way you want it to go. You can take Customs to court, you will almost certainly lose but you may pull out a longshot win in which case the judiciary will force customs to comply with their rulings - I would bet appeals will go as far as can be done. I would bet most lawyers familiar with Customs law would tell you not to try to fight it since the precedents are well supported unless you had a unique case.
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Dave at Work
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I understand the need for border security to be able look through laptops and other electronic storage devices at the border and don't have too much of a problem with that. My problem is with their claimed ability to seize those items without even a suspicion of wrongdoing and hold onto them for an unspecified amount of time.

I see no legitimate reason for this claimed power, and I see all too many potential abuses for such power. You want to take a gander through my files as I pass through customs? Fine. You want to pull me aside because its gonna take longer than you thought and you don't want to hold up the rest of the line? Fine. You want to send me on my way but claim that you need to hold onto my laptop or other electronic media for further study? You better have a reasonable suspicion that you can put into writing.

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Gaoics79
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quote:
Again: Is there, or is there not, judicial oversight of customs? Can a court force customs to release held property? If so, all is well. What I get from the news article, tho, is that customs is now asserting the right to blow courts off.

Get it through your heads, people: Absolutely no recourse for any kind of major harm done is a recipe for CERTAIN abuses.

Ricky, while I hate to admit it, because I think it sucks, I have to agree with Redscull et al.: there is nothing new here. It's business as usual at the border.

Maybe I have a different perspective as a Canadian citizen, but I've been aware for years of (and wary of) the awesome unchecked powers of your customs officials.

On this side of the border, we all know that you don't mess with a customs agent at the border. Look at them the wrong way, and they can just ban you from the country for a year at their whim. You have no recourse.

What's so surprising about the fact that these guys can search the data on your laptop?

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Dave at Work
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quote:
jasonr said:

What's so surprising about the fact that these guys can search the data on your laptop?

I don't think that it is surprising that they can search the data as you go through customs. What I find surprising is that they can seize it and send it off site for inspection without any suspicion of wrongdoing.

Heck, my phone (Palm Treo) would be subject to this and if it were taken I would be left without any way to call a lawyer to find out what my recourse is. I don't recall seeing payphones at either the Indianapolis or Providence airports this spring.

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RickyB
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G2 - "It's just not ruling the way you want it to go. You can take Customs to court, you will almost certainly lose"

So it is your contention that there is precedent for customs seizing your papers (not talking about goods. personal documents), not provide an answer why, not provide a date when it will be done examining them... AND IN ALMOST EVERY CASE THE COURT WILL SAY FINE? ooops, sorry for the caps, but they're actually quite appropriate. See, what I think is happening here is an expansion of the border exemption to personal documents.

If there is precedent for indefinite seizure of personal papers upheld by the courts, please cite and link, if you can? I have no clue.

Like DaW (that noted librul... [Big Grin] ) said:
"You want to send me on my way but claim that you need to hold onto my laptop or other electronic media for further study? You better have a reasonable suspicion that you can put into writing."

"Look at them the wrong way, and they can just ban you from the country for a year at their whim. You have no recourse."

Jason - Wahhhh? So you're a Canadian citizen, coming back from vacation, you get lippy with the Canadiancustoms guy and he says you can't pass, can't go back home for a year??? You can be banned from your home at the total whim of a customs guy?

[ August 05, 2008, 06:19 PM: Message edited by: RickyB ]

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Dave at Work
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quote:
Like DaW (that noted librul... [Big Grin] ) said:
Only on my Dr. Jekyll days. On Mr. Hyde days I'm apparently a raging conservative.

I maintain that I'm completely independent on all other days. [Big Grin]

Edited because I got my, I mean the, personalities mixed up again.

[ August 05, 2008, 06:32 PM: Message edited by: Dave at Work ]

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The Drake
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quote:
Originally posted by Redskullvw:
So exactly what has changed? Nothing.

Obviously something has changed, lots more laptops are being seized now than in the 1830s. [Smile]

No new law is established, naturally. Several people have already conceded that. Our government has several powers that we expect it to use judiciously. That doesn't mean that the application is not changing when a growing number of travelers have laptops confiscated.

Add to this, that business travelers have reported waiting up to a year to get their laptop back. The process is clearly broken. It shouldn't take more than a day or two to completely copy all the electronic data contained in the computer.

Why should we care? This essentially is a drag on business. They must be prepared to encrypt sensitive company data, or wipe and replace the data after coming through the border. International bodies might opt not to have events or conventions inside the US. We also lose any standing to object to this treatment of our citizens entering other countries, including China.

I will agree that this isn't that new, most regular international business travelers have been aware of the seizures since 2005. The fact that there are now guidelines makes it better than before, not worse.

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Gaoics79
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quote:
Jason - Wahhhh? So you're a Canadian citizen, coming back from vacation, you get lippy with the Canadiancustoms guy and he says you can't pass, can't go back home for a year??? You can be banned from your home at the total whim of a customs guy?
Well obviously a customs guy can't ban an American citizen... but he can search your baggage if he wants to.
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