[Infowarrior] - Peter Swire: No, You Can't Search My Laptop

[Richard Forno]

http://www.americanprogress.org/issues/2008/06/laptop_testimony.html


No, You Can't Search My Laptop
Testimony to the Senate Judiciary Subcommittee on the Constitution

By Peter Swire | June 25, 2008

Peter Swire is a Senior Fellow at the Center for American Progress  
Action Fund and a professor at the Moritz College of Law the Ohio  
State University.

In recent months I have become increasingly aware of what I consider a  
deeply flawed policy. The U.S. Customs and Border Patrol now takes the  
position that it can seize and copy the contents of a laptop or other  
computing device for a traveler entering the United States, based  
simply on its authority to do traditional border searches.

The government seems to believe that, if they can open a suitcase at  
the border, then they can open a laptop as well. This simplistic legal  
theory ignores the massive factual differences between a quick glance  
into a suitcase and the ability to copy a lifetime of files from  
someone’s laptop, and then examine those files at the government’s  
leisure.

This issue has come into sharp focus since the April decision of the  
Ninth Circuit Court of Appeals in U.S. v. Arnold. That panel clearly  
ruled that CPB can seize a laptop computer at the border, and examine  
its contents, without any reasonable suspicion of unlawful activity.  
Affidavits in that case and other credible reports show that agents at  
the border are going further—they are requiring travelers to reveal  
their passwords or encryption keys so that government agents can  
examine the full content of the laptop or other computing device.

Other witnesses today will go into depth about crucial objections to  
these laptop border searches, including constitutional prohibitions  
under the First and Fourth Amendments, ethnic profiling, and severe  
impact on commercial and individual travelers who are forced to reveal  
confidential records to the government.

My focus is different, drawing on my personal involvement in the  
encryption policy battles from a decade ago. My thesis is that laptop  
border searches bear a striking similarity to the federal encryption  
policy that was attempted during the 1990s but reversed in 1999. My  
testimony presents a brief history of these “crypto wars,” as they  
were called. In particular, the testimony describes the so-called  
“Clipper Chip,” where the government hoped to gain the encryption keys  
in advance for telecommunications devices. The testimony then examines  
eight precise analogies between the failed encryption policy of the  
1990s and laptop border searches. For each of the eight critiques, the  
testimony explains how the critique applied to encryption policy and  
how the same argument applies to today’s border searches:

1. Traditional legal arguments apply badly to new facts about computing

2. Government forces disclosure of encryption keys

3. Severe violation of computer security best practices

4. U.S. policy creates bad precedents that totalitarian and other  
regimes will follow

5. Severe harm to personal privacy, free speech, and business secrets

6. Disadvantaging the U.S. economy

7. Political coalition of civil liberties groups and business

8. Technical futility of U.S. policy

Since I became aware of the issue of laptop border searches I have  
spoken to an array of businesspeople, computer security experts, civil  
liberties advocates, and ordinary people who hear what the government  
is doing. The reaction has been uniform: “The government is doing  
that? They are just stopping people at the border, opening people’s  
laptops and making copies of what’s inside? It could happen to anyone,  
even if they’ve done nothing wrong? That is simply not right.”

I hope today’s hearing will be an important step toward curbing the  
current practices.

Read the full testimony (pdf)
http://www.americanprogress.org/issues/2008/06/pdf/swire_laptop_testimony.pdf

Peter Swire is a Senior Fellow at the Center for American Progress  
Action Fund and a professor at the Moritz College of Law the Ohio  
State University.