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Thursday, January 02, 2014

Searching everything for any reason

So much for security in one's papers and effects. At this point, the federal courts aren't even really trying to pretend the Constitution is still in effect:
A federal court today dismissed a lawsuit arguing that the government should not be able to search and copy people’s laptops, cell phones, and other devices at border checkpoints without reasonable suspicion.... In June, in response to an ACLU Freedom of Information Act request, DHS released its December 2011 Civil Rights/Civil Liberties Impact Assessment of its electronics search policy, concluding that suspicionless searches do not violate the First or Fourth Amendments. The report said that a reasonable suspicion standard is inadvisable because it could lead to litigation and the forced divulgence of national security information, and would prevent border officers from acting on inchoate "hunches," a method that it says has sometimes proved fruitful.
The absurd thing is that the reasoning that justifies the open abandonment of the Constitutional limitations on the federal government could be used to justify literally anything. Sure, a hunch could lead to stopping a terrorist attack, of course, it could just as credibly lead to stopping a demonic invasion by transdimensional god-aliens.

And yet, it strikes me that there is no "terrorist attack" or "demonic invasion by transdimensional god-alien" clause anywhere in the Constitution. It must be in one of those emanations or penumbras. This is why you can't ever allow for "reasonable exceptions" in any organization. It never takes long for the reasonable exceptions to become unreasonable ones.

The rule of the game is now pretty simple. The federal government rules by a combination of force and fraud. They're unwilling to openly throw out the Constitution, but the fig leaves they are using these days to cover their actions are growing increasingly small.

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57 Comments:

Anonymous Stilicho January 02, 2014 7:20 AM  

This follows a long line of 4th amendment cases that have held that the 4th Amendment stops at the border. It was also the original basis for the policy of warrantless intercept of cross-border communications. It is yet another geographic fallacy in which the state engages (the best known of which is the belief that geographic location can transform a barbarian into a civilized, liberty-loving, American). Either the 4th Amendment (and the rest of the Constitution for that matter) protects U.S. citizens from their own government, or it does not. The government's position is clear. So, who ya gonna believe? The government? Or your lying eyes?

Anonymous Jeigh Di January 02, 2014 7:25 AM  

The sad part is that there are still people saying, "Well, if you haven't done anything wrong, what are you afraid of?"

Anonymous Stilicho January 02, 2014 7:30 AM  

It makes this article from the NY Times even more hilarious:

Budget cuts have imperiled the ability of the federal court system to deliver prompt justice and to protect the public, Chief Justice John G. Roberts Jr. wrote on Tuesday in his annual report on the state of the federal judiciary. He said the mandatory budget cuts known as sequestration had taken a disproportionate toll on the federal court system and were poised to “pose a genuine threat to public safety.”

What Chief Justice Roberts has failed to realize is that those are not cuts to the judiciary's budget, those are (regardless of what Congress called them) taxes levied upon the judicial branch and, therefore, quite acceptable.

Anonymous PhillipGeorge(c)2013 January 02, 2014 7:30 AM  

In legal fiction all things are possible. Beyond the bar? Well theory has it beyond the bar is another jurisdiction, another world.
Suggest common law is the place to assert The Truth, The Whole Truth, and Nothing But The Truth. In walking into a "court" what implicit contracts does a man have to explicitly renounce? A legal personality can be responsible for anything, be in all places at once, know the entire library of Congress, walk on water, know what future laws are going to prohibit. How to retrieve reality? That's the question I think this is all about.

Anonymous Stilicho January 02, 2014 7:37 AM  

The article,Link, also includes this gem:

Chief Justice Roberts made clear that he did not relish the task of asking another branch of government for money. Visiting judges from other nations “raise an eyebrow,” he wrote, “when I point out the vital role of the legislative branch of government” in making an independent judiciary possible.

Is that the Chief Justice salivating over the possibility of issuing a ruling that the courts get to set their own budgets? Because independent branch?

Anonymous Steveo January 02, 2014 7:39 AM  

I have a hunch this is not going to end well.

Anonymous Difster January 02, 2014 7:40 AM  

This is why encryption is important.

Reformat your hard drive and use TrueCrypt to encrypt your entire hard drive so that you need a very big pass phrase in order to open. Other court rulings have said that they can't force you to decrypt your laptop without reasonable suspicion.

They can't search if they don't know how to get in to it.

Anonymous VD January 02, 2014 7:46 AM  

They can't search if they don't know how to get in to it.

Bad idea. They'll keep it if they can't crack it. The lesson is: don't take your laptop or any devices that have anything on them. If you're traveling, bring a cheap vanilla tablet that gives you email access but has absolutely nothing on it.

Anonymous daddynichol January 02, 2014 7:58 AM  

OT. Vox, sometimes I post your blog topics on social media, but when I cut and paste the link, it shows title of the post, but with the lead in, "Success comes most swiftly...", rather than a few words from the actual post. Would it be possible fix that? You opening lines would help draw in readers.

Anonymous Different T January 02, 2014 8:05 AM  

Off topic

pussytivereinforcement.com

any suggestions or ideas on the designs. Obviously the site looks like shit.

specifically, pussytivereinforcement.com/ww.jpg

Anonymous Difster January 02, 2014 8:06 AM  

If you're traveling, bring a cheap vanilla tablet that gives you email access but has absolutely nothing on it.

Except that I still have work to do. I have to have my applications and files that I need to do my work. I suppose I could upload my applications and files and then put them on my machine on the other side but that's highly inconvenient as well.

There's also the problem that if you are within a 100 miles of the border, you can be subject to search by border patrol. I live almost inside that 100 mile mark.

Anonymous VD January 02, 2014 8:30 AM  

Except that I still have work to do. I have to have my applications and files that I need to do my work.

Then buy a cheap travel laptop that has nothing but what you need on that trip. You cannot expect to protect the data. So you must make sure the data is innocuous.

Anonymous Salt January 02, 2014 8:30 AM  

Travel with encrypted / massively virused thumbdrives containing nothing but junk.

OpenID simplytimothy January 02, 2014 8:35 AM  

What Chief Justice Roberts has failed to realize is that those are not cuts to the judiciary's budget, those are (regardless of what Congress called them) taxes levied upon the judicial branch and, therefore, quite acceptable.

That's good. (:

Anonymous Big Bill January 02, 2014 8:41 AM  

The report said that a reasonable suspicion standard is inadvisable because it . . . would prevent border officers from acting on inchoate "hunches," a method that it says has sometimes proved fruitful.

"Inchoate hunches" are otherwise called "profiling". Which I really don't have a problem with. The problem for me is the unspoken confession of failure in border enforcement.

What they are saying, in effect, is that our border is uncontrolled and therefore they must be allowed to treat a 100 mile wide zone as the border.

They are confessing that they cannot do a good search at the border and therefore must turn the entire country (starting with the 100 mile zone) into a border zone.

Instead, let us do what our democratic and loyal allies India and Israel have done and build a wall. Further, let the border-crossers, whether human or freight, pay the full cost of border control.

This was a major reason that the Federal government was granted the power to lay tariffs and duties on trade: to pay for aids to navigation (buoys, maps, charts, dredges, etc.), to fund customs officers and to inspect ships and goods entering the USA.

Let us again put the cost of inspection on all border crossers so Americans do not have to pay the price in civil liberties for a 100 mile wide "customs zone".

If it costs $500 for all foreigners and foreign goods entering the country to insure a proper inspection then so be it. If they wish to visit then they will pay the price.

Anonymous Joe Doakes January 02, 2014 8:57 AM  

The ACLU did one useful thing: they created a map of the Constition-Free Zone that extends 100 miles inland from the border. Two-thirds of all Americans live within that zone. That's fine with me, I never liked Green Bay anyway.

Anonymous njartist49 January 02, 2014 9:24 AM  

"...it could just as credibly lead to stopping a demonic invasion by transdimensional god-aliens."
Really? well, in that case, let us cry havok and unleash the dogs of the Gesta..umm...DHS!

Blogger James Dixon January 02, 2014 9:27 AM  

In that regard, Walter Williams recent townhall article might be of interest to the Ilk: http://townhall.com/columnists/walterewilliams/2014/01/01/parting-company-n1769958

Blogger IM2L844 January 02, 2014 9:31 AM  

Precise Puppy on a USB flash drive and use UPS to send it back and forth as needed.

Anonymous Mr. Stubby January 02, 2014 9:55 AM  

But the constitution is still on display at the National Archives in Washington DC.

Digital quartering of troops:

http://www.washingtonsblog.com/2014/01/nsa-quartering-digital-troops-within-homes.html

Blogger Markku January 02, 2014 10:25 AM  

Bad idea. They'll keep it if they can't crack it.

As the TrueCrypt website says: "Supports plausible deniability". The program is designed in such a way that there is nothing in the file that suggests it contains something encrypted. You could name it, say, itunes.dll and put it in Windows/System32. You'll know yourself that you have to navigate to this file with TrueCrypt, but nobody else has any reason to think so.

Remember to uninstall TrueCrypt when you go to the airport and download it again at the destination, so that its presence doesn't suggest the presence of a crypted file.

Blogger Markku January 02, 2014 10:29 AM  

See how important free, opensource software is to human freedom? US Government would have any commercial software's developer by the balls, but what can they do about an opensource project where nobody profits?

Blogger Markku January 02, 2014 10:37 AM  

Perhaps you are TRULY paranoid, and fear that the government has a software that recognizes files that contain pure noise, lest it perhaps actually contain encrypted data? Ok, then. Make c:\samples and put some sound samples there. Make whitenoise.wav . Write a program that takes a truecrypt file, puts wavefile headers on it and overwrites whitenoise.wav . And similarly, extracts the seeming samples from the wav and turns them into encrypted.truecrypt . Now, the whitenoise.wav seems TRULY innocent because it actually plays as white noise when played with Media Player. But run your little program, and terrible secrets come out...

Blogger Markku January 02, 2014 10:48 AM  

Or, it gets better! Perhaps you can come up with an excuse to have absolutely HUGE amounts of random bytes somewhere on your hard drive? But what if your little software were to know that the first 1.34GB of it is bullshit random data, and the next 200MB contains an encrypted drive, after which comes 5.7GB more random crap?

TrueCrypt provides infinite possibilities. The system is pure genius.

Anonymous GG January 02, 2014 11:02 AM  

"This is why encryption is so important."

The encryption game leads us right to the mark of the beast which is inevitable, I suppose. We will encrypt, they will crack codes, and eventually the whole thing will get so out of control, we will all be marked with an identity just so we can engage in commerce.

Anonymous automatthew January 02, 2014 11:13 AM  

TrueCrypt also supports "hidden volumes".

Source:

The password for the hidden volume must be substantially different from the password for the outer volume. To the outer volume, (before creating the hidden volume within it) you should copy some sensitive-looking files that you actually do NOT want to hide. These files will be there for anyone who would force you to hand over the password. You will reveal only the password for the outer volume, not for the hidden one. Files that really are sensitive will be stored on the hidden volume.

Anonymous Ras Al Ghul January 02, 2014 11:19 AM  

When those Godlings from a Hell Dimension cross over, won't you be chagrined . . .

Blogger IM2L844 January 02, 2014 11:26 AM  

The system is pure genius.

It's clear that people who really want to can find ways to circumvent the government with some relatively minor logistical inconveniences. So what's the point? Social conditioning.

The next generation will have even less aversion to government intrusion than most idiots today. Objections to random cavity searches will become passé. Those who do object will be ridiculed as fringe nut jobs, atavistic right wing extremists and conspiracy theorists. Because bogymen.

You're more likely to be hit by lightening than be the victim of a terrorist attack.

Anonymous Noah B. January 02, 2014 11:57 AM  

If your system is unbootable and/or won't power up for whatever reason, in addition to having your data secured by TrueCrypt, they're probably going to lose interest quickly. I doubt the ICE folks are going to be doing much in the way of sophisticated troubleshooting. Still, it's best to have no data with you that would be detrimental to you if it were discovered.

Anonymous Will Best January 02, 2014 11:58 AM  

Remember to uninstall TrueCrypt when you go to the airport and download it again at the destination, so that its presence doesn't suggest the presence of a crypted file.

The problem is that a delete just removes the pointer to files so they can still be found with even cheap drive recovery software and a scrubbing looks suspicious and would probably be enough for them to get a warrant. Cause why would you scrub if you weren't a bad bad man?

Anonymous Difster January 02, 2014 12:08 PM  

Use TrueCrypt from a flash drive so yo don't have to have it installed on your system.

Anonymous TWS January 02, 2014 12:13 PM  

I forget how many terrorists have DHS stopped? One? Did they have to decrypt his nonexistant laptop?

Another question, why do they need a walled compound bigger than the county jail in my tiny rural community?

Anonymous GG January 02, 2014 12:24 PM  

"Still, it's best to have no data with you that would be detrimental to you if it were discovered."

Noah, I understand what you are saying, but there is also a very a short bridge between "detrimental" and "conformity." Before you know it, "detrimental" becomes your political views, your religion, who you associate with, what you read or write.

Anonymous Jack Amok January 02, 2014 12:47 PM  

The sad part is that there are still people saying, "Well, if you haven't done anything wrong, what are you afraid of?"

Personally, I'm most afraid of losing my temper and decking one of these blowhards. Actually, that's not true, I have pretty good control of my temper, that's only the numver 4 on my list of worries. The top three are:

1 - accidentally violating some dumbass law that nobody with half a brain would think was needed
2 - being the target of a mistaken identity no-knock raid or other dynamic activity
3 - having some jackboot plant evidence on me for fun or profit.

Cops and Robbers used to be a game with two sides.

Anonymous DonReynolds January 02, 2014 12:50 PM  

Vox is discussing the difference between conservatives and fascists and this is important because there are too many people who confuse the two, I suspect deliberately so in most cases, but for those who are slightly more honest this makes for a useful discussion.
.
A conservative is anxious or even frightened that law enforcement would ignore the constitution and conduct searches without probably cause or a court-ordered warrant. A conservative is only a supporter of the police as long as the police follow the law. Likewise, a conservative is not going to rally around the flag for every illegal foreign war initiated by the US. It isn't that a conservative is not patriotic. Conservatives are terribly patriotic and they care very much about the young people sent to fight in foreign wars. Too many are killed or crippled for life for reasons and causes that Congress could not even vote on a declaration of war.

Fascists love people in uniforms and it does not matter if they are cops or soldiers or letter carriers or firemen. Fascists love having power over other people. They are control freaks. The only people they love more than people in uniform are spies and state-sponsored terrorism. Fascists believe in revenge and murder and assassination and police brutality and torture. They are not conservative in the least. There is no rule of law to a fascist and they admire executives who think and act beyond the law, or bend the law, or temporarily suspend the law in order to accomplish the mission, or figure out a new way to circumvent the law. A fascist is a monarchist, who has not found his King. They are not patriots and they do not love their country. They simply want to use their country to serve other masters. (NeoCons would be perfectly happy to destroy their own country in the defense of Israel. Yes, NeoCons are fascists, whether they belong to the Republican party or the Democrat party.)

Anonymous DonReynolds January 02, 2014 12:59 PM  

Conservatives love a good hanging.....in public, after a fair trial and all appeals have been exhausted.

Fascists love lynch mobs, curbstone justice, murder by police, and sweating down the prison population by abuse and neglect.

Anonymous Jack Amok January 02, 2014 1:16 PM  

Excellent analysis Don. Fascists love power, and their lust for it corrupts them. I'll only add that almost every socialist will eventually become a fascist unless they reject socialism first, because socialism requires people to thanklessly sacrifice themselves for society and that doesn't happen on a mass scale without force.

Anonymous Noah B. January 02, 2014 2:17 PM  

Before you know it, "detrimental" becomes your political views, your religion, who you associate with, what you read or write.

I don't disagree. This is why I advocate strong, properly implemented, open source encryption.

Anonymous Jack Amok January 02, 2014 2:29 PM  

Speaking of actual borders, apparently the city of Firday Harbor in WA state is pretty aggitated about the Custom's folks moving to a downtown, highly visible location. Friday Harbor is on San Juan Island, and it's one of the busiest ports of entry in the US. It's small, quaint, full of liberals, and pissed off that a FedGov police agency is going to occupy the most prominant building in the middle of downtown. The owner of the building who leased it to them is under attack by his former friends, and people are complaining about the "friendly islant spirit" of the community being destroyed.

(as a subtext, though none of the media coverage of the story has explicity mentioned it, one of the things I noticed was that the Government was the only entity that could afford the 'market rate' that the owner was asking. Pay attention to real estate and advertising - increasingly government agencies are driving private businesses to the margins).

Anonymous TWS January 02, 2014 2:30 PM  

If it's a good uniform that includes a gun nearly all women are fascists. They all go 'sploosh'. It's weird.

Anonymous Zartan January 02, 2014 2:44 PM  

If they don't search teh haxorz laptops when we cross borders, how will the NSA get the 'sploits and pr0n they need?

Anonymous Zartan January 02, 2014 2:50 PM  

@difster - court rulings are split on compelling passwords to decrypt encrypted disks/volumes.

Schneier suggests generating a random password, and sending it ahead (pick a method you like) One can't be compelled to provide what you don't have or know.

OR Keep nothing on the computer, use TAILS as the OS - don't use local storage at all, and use a burn phone when traveling.

Anonymous Lesbian Dorito Night January 02, 2014 3:01 PM  

For those feeling trollish - see this anti-forensics video:

int0x80's presentation from DerbyCon: Anti-Forensics for the Louise

Anonymous Loki Sjalfsainn January 02, 2014 3:14 PM  

it could just as credibly lead to stopping a demonic invasion by transdimensional god-aliens.

I think I have amply proven otherwise.

Anonymous DT January 02, 2014 3:15 PM  

Vox - I would be very interested in reading a blog post by you covering options for leaving the U.S. What are the best nations to move to? What nations might seem like good choices but are actually as bad as the U.S.? What should one do in preparation for moving abroad?

I'm not married, have no children, and do most of my work over the Internet any way. I'm not sure why I'm staying here any longer. I have a growing, sick feeling in the pit of my stomach that the day is approaching when I do not want to be any where near the U.S. Maybe not tomorrow but...20 years? 10? Less? Something is going to break and this government is going to become even more totalitarian. I don't want to be here when certain lines are crossed.

Blogger rycamor January 02, 2014 3:21 PM  

Between this and the other thread about the NSA, and the revelations of hardware compromise, I'm starting to think the world could end up with an underground computer construction movement. How long before small-scale manufacturing allows us to make our own computers from the ground up? There have been open-source chip and BIOS designs available for at least a decade.

Anonymous ArcaneRhino January 02, 2014 4:15 PM  

This decision is not actually as nefarious as you may think. Or, at least, like it or not, it is consistent with historic border-crossing vs 4th Amendment decisions. Border inspections have always been a cut-out from the 4th amendment.

What is noteworthy is that this decision allows the treatment of computer/device data to be the same as any other papers and personal effects when crossing the border.

Be forewarned, I guess.

Anonymous Jack Amok January 02, 2014 6:11 PM  

What is noteworthy is that this decision allows the treatment of computer/device data to be the same as any other papers and personal effects when crossing the border.

What "border" is 100 miles from the actual international border?

Anonymous Zartan January 02, 2014 6:59 PM  

@ArchaneRhino

Nope it is *VERY* different. This ruling allows them to image your phone and/or PC and peruse the contents at their leisure. This is quite different from searching my car at the border.

Using PGP w/ your PC? Oops they have the private key now. List of passwords and accounts? Browser history?

Much like the "it's just metadata" fallacy this will have unexpected and disturbing consequences.

Anonymous Lawyer Dude January 02, 2014 8:35 PM  

The person who was searched, Pascal Abidoris, a god-damn vibrant. He is an Islamic Studies Ph.D. student (!) who has dual French-American citizenship who had traveled to Lebanon and has associations with Hezbollah and Hamas rallies. The search was reasonable in light of this very specific incidence.

Anonymous Sigyn January 02, 2014 9:15 PM  

The person who was searched, Pascal Abidoris, a god-damn vibrant.

Is he an American?

He is an Islamic Studies Ph.D. student (!) who has dual French-American citizenship

Yep, looks like he's an American, which means he has rights. I'll grant you that studying anything for a graduate degree is a reasonable indicator of being a nascent fascist who hates America, but the fun thing about rights is that even the people we don't like have them.

who had traveled to Lebanon and has associations with Hezbollah and Hamas rallies.

Which they found out AFTER they'd searched his laptop...and that "association" is "went to a public rally and took a picture". Zombie must be a nudist gay public-sex advocate, at this rate.

The search was reasonable in light of this very specific incidence.

And it required they make copies of his IM chat with his girlfriend. Because NATIONAL SECURITY.

Anonymous DonReynolds January 02, 2014 9:26 PM  

Lawyer Dude....."The person who was searched, Pascal Abidoris, a god-damn vibrant. He is an Islamic Studies Ph.D. student (!) who has dual French-American citizenship who had traveled to Lebanon and has associations with Hezbollah and Hamas rallies. The search was reasonable in light of this very specific incidence."

Lemmie guess.....a drone strike would have also been justified on this information?

Let me tell you a true short story. Sometime in 2005, I drove from my home in Austin TX to Nashville TN. First stop was to catch up with my older cousin about some business, but on my way to his office, it began to rain. Not a heavy rain, but pretty steady. At the same time, the city bus in front of me dropped off a passenger at a stop that appeared to be the middle of nowhere......meaning, no shelter in sight for the young woman who was starting to get wet. I pulled up and asked her if she had far to go and did she need a ride. She got in my car and a half block later a cop car pulled in behind me and rode my bumper for another mile or so......finally putting on his blue lights...... so I pulled over. In a few moments there were 5 or 6 more police cars surrounding me. I got out of the car and so did my passenger.....we were at her destination.....which was the nearest convenience store. I was told I would be arrested and the fattest cop pulled out a long yellow form and started filling in information from my Texas drivers license. There were lots of questions.....where am I going?.....where do I work?.....how long have I been in Nashville?......it went on like this for almost an hour standing next to my car in the rain. So I finally asked, what am I charged with? He said my passenger was a KNOWN PROSTITUTE. I brushed him off. She was not know to me as anything, just somebody caught in the rain. (She never mentioned her business, I guess it was her lunch break.) In the end, I was warned against picking up riders.....something I have done for over 40 years..... and I was allowed to leave without a citation.

I am willing to compare this prostitute to any KNOWN terrorist. In this country, we do not arrest people because of who they talk to or what they might do if given an opportunity. If they do a crime, they should be arrested....until then, back off. If they buy a truckload of fertilizer, do some followup.....but there may be a legitimate reason for the purchase.

Anonymous Scintan January 03, 2014 1:05 AM  

I'm starting to think the world could end up with an underground computer construction movement. How long before small-scale manufacturing allows us to make our own computers from the ground up? There have been open-source chip and BIOS designs available for at least a decade.

The bloated governments of the world will always have the firepower, of whatever type needed, to overcome this. This is the warning that has gone unheeded in the U.S.. At some point, and soon, the government will be safe from the people, and then it will be able to act with impugnity.

That's the whole point, and endgame, of modern government.

Anonymous Stilicho January 03, 2014 6:09 AM  

What "border" is 100 miles from the actual international border?

It's a cis-border... duh!

Blogger Galt-in-Da-Box January 03, 2014 9:43 AM  

I am willing to compare this prostitute to any KNOWN terrorist. In this country, we do not arrest people because of who they talk to or what they might do if given an opportunity.""

Oops!
Looks like SOMEBODY never heard of NDAA 2012.

Blogger Galt-in-Da-Box January 03, 2014 9:44 AM  

If they can't stop wetbacks, how are they going to stop terrorists?

Blogger Galt-in-Da-Box January 03, 2014 9:45 AM  

I am willing to compare this prostitute to any KNOWN terrorist. In this country, we do not arrest people because of who they talk to or what they might do if given an opportunity.""

Oops!
Looks like SOMEBODY never heard of NDAA 2012.

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