[00:13.080 --> 00:15.220] So, thank you all for coming to this talk. [00:15.400 --> 00:25.020] I was worried that there were only going to be two people in the room because Adam Savage is next door, but I really appreciate your being here, because I think this is a really important topic. [00:25.380 --> 00:38.180] And the fact that you're here helps demonstrate... and the fact that I got to speak about this at this conference helps demonstrate to our political system that there are people that are concerned about that, and that is really important. [00:38.260 --> 00:39.520] That's really what I'm trying to do here. [00:40.360 --> 00:42.400] So, let me go over the basics. [00:45.620 --> 00:50.140] U.S. Customs is randomly searching the contents of electronics devices at U.S. [00:50.220 --> 00:50.900] border checkpoints. [00:51.580 --> 00:54.340] Laptops, PDAs, cell phones, digital cameras. [00:55.240 --> 00:58.160] You may be asked to reveal your encryption key to them. [00:59.280 --> 01:01.240] There are consequences if you do not. [01:01.440 --> 01:02.680] They could detain you. [01:02.840 --> 01:04.380] They could seize your device. [01:05.340 --> 01:10.300] Sometimes, items have been seized and returned without explanation weeks or months later. [01:10.860 --> 01:20.780] The Association of Corporate Travel Executives, which is kind of this lobbying organization that tries to make life easier for business travelers, they did a survey of their members. [01:20.780 --> 01:23.260] They had 100 members respond to this survey. [01:23.480 --> 01:29.480] And seven of those respondents said that they had had electronics seized from them by U.S. [01:29.560 --> 01:30.280] Customs at the border. [01:30.540 --> 01:32.180] So, these are business travelers. [01:34.320 --> 01:39.180] And Customs says, everyone is subject to a CBP inspection when they arrive in the U.S. [01:41.010 --> 01:47.140] So, I think maybe 20, 30 years ago, we had two things going on in this country. [01:47.280 --> 01:53.340] We had a drug war, which created what some people refer to as the drug war exception to the Constitution. [01:54.710 --> 02:03.600] Certain things are kind of overlooked because the system felt it was useful for them to be able to aggressively prevent narcotics trafficking. [02:03.600 --> 02:12.120] At the same time, the technology that people had access to at that time, you know, has changed dramatically today. [02:12.960 --> 02:23.060] People have these devices that are increasingly powerful, have increasingly detailed records of their correspondence, their thoughts, and their lives. [02:23.240 --> 02:25.520] And they carry them with them all the time. [02:25.660 --> 02:26.880] And that's really a new development. [02:26.880 --> 02:35.220] And so, the policies that were developed during the 80s to deal with the drug war don't necessarily make sense today with today's technology and today's threats. [02:36.210 --> 02:44.940] And so, there was a... and I'll get to this a little bit later, but there was a Senate hearing about this very subject a couple of weeks ago, which is a positive development. [02:45.240 --> 02:48.800] And there was a guy named Peter Swire there from the Center for American Progress. [02:48.900 --> 02:53.580] And he said, this is an issue which may mobilize the reserve army of outraged techies. [02:53.580 --> 02:54.720] Well, that's us, right? [02:55.180 --> 02:58.260] So, that's why I'm glad you all are here. [02:58.660 --> 03:02.020] And it certainly makes me angry. [03:02.420 --> 03:07.200] And if it makes you angry too, then maybe we will mobilize and do something about it. [03:08.940 --> 03:10.400] So, I'll get to that in a sec. [03:11.220 --> 03:14.120] So, before I get into the details, I want to tell a personal story. [03:14.300 --> 03:17.860] I was once the subject of a random border search by U.S. [03:18.020 --> 03:18.420] Customs. [03:18.420 --> 03:20.140] I had been in Australia. [03:20.160 --> 03:22.420] This was prior to September 11th. [03:22.560 --> 03:23.640] I was on vacation. [03:23.920 --> 03:30.320] And unfortunately, I had to cut my trip early because I had death in my immediate family. [03:30.500 --> 03:33.100] And so, I flew back to the United States. [03:33.100 --> 03:34.640] I was flying into LAX. [03:35.000 --> 03:39.400] And me and my sister were randomly selected for search at the border. [03:40.620 --> 03:43.500] And, you know, needless to say, I was kind of in a bad mood. [03:44.480 --> 03:48.520] And, you know, I've got these people who have decided to go through my stuff. [03:48.520 --> 03:50.100] And they're going through my bag, right? [03:50.220 --> 03:53.080] And they hold up every single object in the bag. [03:53.240 --> 03:55.860] Every pair of underwear, every T-shirt. [03:56.020 --> 03:57.380] And they hold it up and they say, is this yours? [03:57.860 --> 03:58.820] Is this yours? [03:59.140 --> 04:00.140] Is this yours? [04:00.360 --> 04:01.340] Is this yours? [04:01.720 --> 04:05.220] Is this yours? [04:05.220 --> 04:05.560] Something's nice to me out. [04:05.720 --> 04:06.200] Okay? [04:06.300 --> 04:13.100] Because you get lulled into this sort of automatic response after the 20th or 30th piece of clothing is held up. [04:13.200 --> 04:14.940] You just kind of say, yeah, it's mine. [04:15.160 --> 04:16.280] Yeah, it's mine. [04:16.420 --> 04:17.240] Yeah, it's mine... [04:17.240 --> 04:18.300] Without paying attention. [04:18.580 --> 04:22.480] And so, you know, if they wanted to grab something under the table... [04:22.480 --> 04:23.180] And show it to you... [04:23.180 --> 04:24.860] You might say, yeah, it's mine... [04:24.860 --> 04:26.260] ...without really looking at it first. [04:26.760 --> 04:28.160] And that kind of bothered me. [04:28.460 --> 04:29.320] Well, why are they... [04:29.320 --> 04:29.940] Why are they... [04:29.940 --> 04:32.120] Using this sort of a lot... [04:32.120 --> 04:32.480] A lot... [04:32.480 --> 04:35.200] A system of questioning that seems particularly designed to... [04:35.220 --> 04:37.420] to elicit an incorrect or false confession. [04:37.760 --> 04:39.720] So, I was kind of pissed off. [04:39.820 --> 04:42.740] And I'm thinking, I'm an American citizen. [04:42.740 --> 04:43.640] I'm on U.S. soil. [04:44.160 --> 04:44.900] This is the U.S. government that's searching my stuff. [04:46.420 --> 04:47.660] I was randomly selected. [04:47.720 --> 04:48.500] What's up with that? [04:48.660 --> 04:51.080] This should be a violation of my Fourth Amendment rights. [04:51.260 --> 04:52.740] And I went and Googled it. [04:52.800 --> 04:53.940] And I learned two things. [04:54.140 --> 04:57.660] The first thing is that Beanie Babies are public enemy number one. [04:58.420 --> 05:00.460] I went... the first place I went was the U.S. [05:00.600 --> 05:01.680] Customs Service website. [05:02.160 --> 05:07.040] This was a few weeks later after the smoke had cleared from everything I was doing when I got back to the States. [05:07.620 --> 05:13.200] And the... the... the... they have a FAQ. [05:13.340 --> 05:15.280] And the first item in the FAQ on the U.S. [05:15.380 --> 05:18.640] Customs website at the time was, why did you seize my Beanie Babies? [05:18.820 --> 05:20.880] At the time, Beanie Babies were really popular. [05:21.120 --> 05:24.800] And apparently, there was no licensed international distributor for them. [05:24.860 --> 05:27.000] And people would go over to Taiwan or whatever. [05:27.220 --> 05:31.100] And there would be a bunch of look-alike Beanie Babies available for sale. [05:31.140 --> 05:32.020] And they would be cheap. [05:32.160 --> 05:33.060] And they'd say, hey, great. [05:33.160 --> 05:34.840] And they'd buy a bunch of them and bring them back in. [05:35.000 --> 05:36.540] And they'd get searched by customs. [05:36.740 --> 05:38.400] And the Beanie Babies would be seized. [05:38.940 --> 05:42.580] So, you know... and I want to be fair about this. [05:43.200 --> 05:44.060] Obviously, the U.S. [05:44.140 --> 05:46.020] Customs Service is looking for terrorists. [05:46.700 --> 05:55.620] But the vast majority of the... of... of the kind of stuff that ends up getting targeted by these guys when they do these searches is... is really intellectual property law. [05:56.640 --> 06:00.000] And I... I'm gonna get into that in... in more detail later on in the talk. [06:00.160 --> 06:02.080] But I think it's important to understand that. [06:03.260 --> 06:10.200] As far as I know, there are two terrorist discoveries that are... that are worth noting. [06:10.380 --> 06:15.260] The first one occurred in the year 2000, at New Year's. [06:15.400 --> 06:20.480] There was a guy coming in... in Vancouver on some ferry from Canada. [06:20.620 --> 06:21.680] And he had a bunch of explosives. [06:21.760 --> 06:23.540] He was gonna drive down and blow up LAX. [06:23.680 --> 06:25.820] And they... they caught him. [06:30.000 --> 06:30.480] There's... [06:30.480 --> 06:32.060] it appeared that it was a random search. [06:32.220 --> 06:34.080] They had reason to suspect the guy. [06:34.240 --> 06:37.200] And the guy acted suspiciously when they started questioning him. [06:37.660 --> 06:43.220] And eventually they... because he was being suspicious and I think he tried to run away, they decided to go through his stuff. [06:43.360 --> 06:44.400] And then they found the explosives. [06:45.280 --> 06:54.280] The... the second case is a case that happened in St. Paul... Minneapolis or Minnesota. [06:55.360 --> 07:01.000] The... the... they had a guy that they found through the system called ATS, which is a profiling system. [07:01.200 --> 07:03.700] So instead... again, he wasn't randomly selected for search. [07:03.800 --> 07:05.820] He was chosen by this profiling system. [07:05.940 --> 07:07.860] And there's debate about that profiling system too. [07:08.080 --> 07:15.420] But... in any event... they went through his laptop and found a couple martyrdom videos, apparently, and information about how to create IEDs. [07:15.520 --> 07:18.780] And so... they use that as an example of why this profiling system works. [07:18.820 --> 07:19.700] And they might have a point. [07:19.800 --> 07:21.300] The profiling system might work. [07:22.200 --> 07:25.700] Neither of these people were... were found through random searches. [07:26.180 --> 07:35.480] And the question is... you know... how likely is it that they're gonna find a terrorist through a totally random search versus what impact are these random searches gonna have on people's freedom? [07:36.500 --> 07:42.800] So... the other thing I learned... I guess... and I... I believed when I had been searched that it was a violation of my Fourth Amendment rights. [07:42.980 --> 07:46.920] So I dug into this and I... I learned that the Fourth Amendment doesn't work the way that I thought that it did. [07:47.760 --> 07:48.920] This is the Fourth Amendment. [07:49.340 --> 07:55.800] And it says, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. [07:56.080 --> 07:56.520] And... no warrant shall issue, but upon probable cause. [07:58.880 --> 07:59.680] Blah, blah, blah, blah, blah. [08:01.360 --> 08:05.500] So... the way to read this, apparently, is to think about it as two clauses. [08:05.920 --> 08:10.680] The first clause says, the right of the people to be secure against unreasonable searches shall not be violated. [08:10.960 --> 08:14.440] And the second clause says, no warrant shall issue, but upon probable cause. [08:14.800 --> 08:22.480] But it doesn't say that you have to have a warrant in order to perform a search, or that a warrant Warrant is required in order to make a search reasonable. [08:23.260 --> 08:27.240] Apparently, 200 years ago, we really didn't have police the way we do today. [08:27.540 --> 08:36.340] And the founders didn't really consider the idea that you might have police who might need to do things without a specific warrant authorizing what they're doing. [08:36.760 --> 08:40.100] And so they just sort of crafted it this way. [08:40.240 --> 08:50.840] And over time, we have these police officers, these police forces we've developed, and we've given them sort of official authority, and they do all these things that require them to perform searches. [08:51.040 --> 08:56.260] And the result is that there are all these cases where the courts have decided that a warrant isn't required. [08:56.900 --> 09:00.400] So one of those cases is the border search case. [09:00.440 --> 09:03.540] And I'm going to get back to these two case precedents later on in the talk. [09:04.080 --> 09:06.720] But there's United States versus Ramsey in 1977. [09:07.440 --> 09:11.080] Searches made at the border are reasonable simply by virtue of the fact that they occur at the border. [09:11.640 --> 09:13.660] Because they're reasonable, a warrant isn't required. [09:13.780 --> 09:15.380] No unreasonable searches and seizures. [09:16.520 --> 09:18.360] And then there's this other case from 85. [09:18.740 --> 09:24.400] Routine searches of persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or a warrant. [09:25.860 --> 09:27.120] I'm going the wrong way. [09:28.020 --> 09:28.880] Let me go that way. [09:29.400 --> 09:37.600] So in addition, there's this... later on, they developed this... in the 80s, they developed this distinction between routine and non-routine searches. [09:37.840 --> 09:40.140] Routine searches can be performed at random. [09:40.400 --> 09:43.080] Non-routine searches require reasonable suspicion. [09:43.140 --> 09:46.820] The question is, what is a routine search and what is a non-routine search? [09:46.980 --> 09:48.540] And what is reasonable suspicion? [09:48.760 --> 09:51.320] And those are things that are still sort of being defined. [09:53.240 --> 10:00.880] So, when we got started with this in 85, the Supreme Court held that reasonable suspicion is required to search a traveler's elementary canal. [10:02.520 --> 10:06.560] This individual was smuggling cocaine in condoms that they had swallowed. [10:06.760 --> 10:12.160] And they were held by customs for a few days in hopes that they would expunge them from their body. [10:12.720 --> 10:16.740] And the Supreme Court found that they couldn't do that at random. [10:16.940 --> 10:24.000] They had to have some reason to suspect that you had swallowed cocaine balloons before handcuffing you to a chair for three days. [10:24.840 --> 10:30.680] So, that's... you know, it's not... reasonable suspicion is not the strongest standard in the world. [10:30.820 --> 10:32.460] It's not the same as probable cause. [10:32.980 --> 10:34.700] Here's an example from a court case. [10:34.800 --> 10:36.760] The suspect arrived from Colombia. [10:36.760 --> 10:37.840] They were traveling alone. [10:38.020 --> 10:39.180] They had only one suitcase. [10:39.420 --> 10:40.460] They had nothing to declare. [10:40.700 --> 10:44.920] It was a young, clean-looking and attractive woman wearing a loose-fitting dress. [10:45.480 --> 10:46.360] Reasonable suspicion. [10:46.920 --> 10:49.820] She did, in fact, have cocaine taped to her abdomen. [10:50.340 --> 10:56.680] So, you know, that's not a very sort of strong basis for suspicion. [10:57.300 --> 11:00.200] And, of course, this is the way rights get eroded. [11:00.800 --> 11:05.080] You... these people go into court over and over and over again with different judges with a guilty party. [11:05.180 --> 11:08.680] And they say, we had reasonable suspicion because of XYZ ridiculous criteria. [11:08.900 --> 11:12.940] And the judge either has to say, well, okay, you had reasonable suspicion. [11:12.940 --> 11:14.600] Or they have to let the guilty party go. [11:14.820 --> 11:17.540] And so, generally speaking, they say, okay, fine. [11:17.660 --> 11:19.340] We're going to count that as reasonable suspicion. [11:19.580 --> 11:22.100] And over time, these things begin to become contradictory. [11:22.740 --> 11:26.080] Suspect was first to the plane, last to the plane, the plane from the middle. [11:26.400 --> 11:28.400] Had one-way tickets, round-trip tickets. [11:28.620 --> 11:30.400] A non-stop flight, changed planes. [11:31.120 --> 11:31.800] Traveling alone? [11:32.080 --> 11:33.220] Traveling with a companion. [11:33.500 --> 11:34.400] Acted nervously. [11:34.540 --> 11:35.740] Acted too calmly. [11:38.320 --> 11:40.560] Here's one other thing I'll say about reasonable suspicion. [11:40.940 --> 11:43.200] Suspect arrived from Germany and traveling alone. [11:43.320 --> 11:46.180] Had only one backpack and no items requiring customs inspection. [11:46.520 --> 11:51.140] Was carrying a laptop, iPod, cell phone, laser pointer, radio scanner, and odd electronic parts and components. [11:51.220 --> 11:54.140] And was wearing a t-shirt that said 2600, the hacker quarterly. [11:55.500 --> 11:56.380] Reasonable suspicion. [11:58.160 --> 12:00.800] So, this is not a very strong standard. [12:00.980 --> 12:01.880] So, there's two questions. [12:02.140 --> 12:09.600] Well, one of them is, does a, does a laptop, does a forensic investigation of a laptop, is it a routine search? [12:09.760 --> 12:11.180] Does it require reasonable suspicion? [12:11.440 --> 12:14.320] And this is really the open question today. [12:14.720 --> 12:17.680] The most recent precedent is from 2004. [12:18.360 --> 12:25.160] The United States Supreme Court held that customs agents may remove a gas tank from a vehicle crossing an international border in an effort to look for contraband. [12:28.440 --> 12:32.160] And they say, what is a laptop more like? [12:32.260 --> 12:35.580] We know reasonable suspicion is required to search someone's elementary canal. [12:35.880 --> 12:39.380] We know it's not required to take the gas tank off their car and take it apart. [12:39.560 --> 12:41.160] What is a laptop search more like? [12:41.260 --> 12:41.680] I don't know. [12:41.780 --> 12:43.320] I guess it depends on what's on your laptop. [12:45.580 --> 12:47.400] Reasonable suspicion is such a weak standard. [12:47.560 --> 12:48.480] You know, who cares? [12:48.600 --> 12:50.460] Who cares if they require reasonable suspicion? [12:50.600 --> 12:52.080] Well, there's two reasons to care. [12:52.280 --> 12:56.120] The first is is that it can't happen at random if they require it. [12:56.240 --> 12:59.460] Which means it will happen less frequently and there won't be quotas. [12:59.600 --> 13:06.580] I think that they randomly search the bags of about 1-2% of everyone that comes into the United States. [13:06.780 --> 13:12.860] So if you think that there's like 300 people on a 747, then that's like 3-6 people off of every plane. [13:13.580 --> 13:15.640] So that's actually pretty frequent. [13:16.620 --> 13:21.460] If it requires reasonable suspicion, then you won't have nearly that many people being searched. [13:22.220 --> 13:27.360] And the other thing is, if they can do it at random, then they can do it to everyone. [13:27.700 --> 13:31.340] And so say you've got these solid state storage devices coming out. [13:32.480 --> 13:37.980] Say you have some breakthrough in technology and it becomes really efficient to duplicate a hard drive. [13:38.000 --> 13:39.160] You can do it in a few seconds. [13:39.360 --> 13:40.440] Let's say that happens. [13:40.820 --> 13:44.600] If you bring... I'll address questions after the talk. [13:44.940 --> 13:51.380] But if we get there, then you can have a situation where people are bringing laptops in. [13:51.380 --> 13:53.620] And all of their contents are being copied. [13:54.920 --> 13:58.360] And so that would be quite scary, I think. [13:59.920 --> 14:06.760] So before I get into the recent court case on this issue, I want to take a step back and just look at this legal framework. [14:06.760 --> 14:12.260] Because I'm not sure that what was decided in the late 70s and early 80s made any sense. [14:12.260 --> 14:21.500] And if you go back to this case that I mentioned in 1985, it says, Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion. [14:21.940 --> 14:22.780] That's what they say. [14:22.980 --> 14:25.960] That's the time when they really officially said it was 85. [14:26.620 --> 14:30.820] And they reference this footnote in the Supreme Court decision. [14:30.820 --> 14:33.300] The footnote says, see United States v. Ramsey and a bunch of dicta. [14:35.140 --> 14:36.240] That's my wording. [14:36.780 --> 14:40.400] Dicta is when the Supreme Court has this issue that they're assessing. [14:40.820 --> 14:45.100] And they decide to say something about something else. [14:45.300 --> 14:47.420] And it doesn't relate to the issue they're deciding. [14:47.420 --> 14:50.880] It's not really necessary or part of their holding. [14:50.940 --> 14:55.600] But it's an indicator for future litigants of how they might make a decision. [14:55.600 --> 15:01.080] And there's all this dicta around border searches where, you know, Supreme Court was talking about someone getting searched. [15:01.220 --> 15:03.920] And they make this comment like, well, if this was at the border, it would be different. [15:03.940 --> 15:06.380] But because it wasn't, this is how we're going to do things here. [15:07.080 --> 15:17.020] And these comments were sort of brought up that in various times in history, the Supreme Court said, things would be different at the border as a justification for the idea that there are no rules at the border. [15:17.380 --> 15:19.100] And I'm not sure that makes much sense. [15:19.360 --> 15:25.960] But it makes the most sense to focus on the actual place where they were looking at a border search and made a binding decision about a border search. [15:26.080 --> 15:26.940] And that was U.S. v. Ramsey. [15:28.700 --> 15:33.840] And in U.S. v. Ramsey, they said, the Congress... they're trying to justify the idea that they don't need a warrant at the border. [15:33.980 --> 15:47.760] And they say, the Congress, which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures in 1789, had some two months prior to that, enacted the first customs statute in July of 1789. [15:47.760 --> 15:59.940] And this statute granted customs officials full power and authority to enter and search any ship or vessel in which they shall have reason to suspect any goods, wares, or merchandise subject to duty shall be concealed. [16:00.180 --> 16:12.140] So, in 1789, they passed this law that said that the customs can search things that they have a reason to suspect might contain contraband. [16:12.140 --> 16:21.220] And the Supreme Court is using that law as a justification for a policy in 1985 that says that no reasonable suspicion is required. [16:21.260 --> 16:23.880] And that, to me, is fundamentally illogical. [16:24.340 --> 16:38.340] If there is a historic basis for the assertion that the founding fathers did not believe that customs officials needed reasonable suspicion, or that the Fourth Amendment required reasonable suspicion at the border, it certainly wasn't established in this case. [16:39.040 --> 16:41.060] And there's more research that needs to be done. [16:41.200 --> 16:42.780] But unfortunately, this is what has happened. [16:42.980 --> 16:51.500] You have this court that makes this claim, and a couple of other courts reference this, and they make little modifications to it, and now we have this policy that says they can do random searches. [16:51.560 --> 16:53.760] And it really came out of nowhere, as far as I can tell. [16:54.820 --> 17:04.420] Someone with more of a background in the history of the founding of this republic might have some interesting references that relate to it, but no one has done any of that research, as far as I know. [17:05.180 --> 17:08.140] So here's a Supreme Court case that... well, no, it's not. [17:08.340 --> 17:08.680] Sorry. [17:08.880 --> 17:10.940] This is a court case that's going on right now. [17:11.660 --> 17:15.360] It was recently decided by the Ninth Circuit Appellate Court. [17:15.380 --> 17:19.040] It is still sort of in process, and I'll talk about its status. [17:19.240 --> 17:21.360] But it gives you a good example of how these things happen. [17:22.760 --> 17:23.360] U.S. versus Arnold. [17:23.760 --> 17:28.520] On July 17, 2005, this guy came into LAX from the Philippines. [17:28.980 --> 17:31.020] He was selected for secondary screening. [17:31.800 --> 17:34.860] He was vacationing with friends in the Philippines. [17:35.680 --> 17:37.440] They asked him to look at his computer. [17:37.600 --> 17:38.320] He booted it up. [17:38.520 --> 17:42.180] There were some Kodak pictures and Kodak memories directories on his hard drive. [17:42.400 --> 17:46.800] They started clicking on... the customs agents started clicking on those folders and opening the pictures. [17:46.980 --> 17:50.460] And one of them had a picture that depicted two nude women. [17:50.460 --> 17:57.640] Now, no one has ever established, as far as I know in court, that those women were not adult women. [17:58.060 --> 18:05.420] And one of the... I guess the appellate court has a footnote in their decision where they say, Customs did not establish that this was child pornography. [18:05.420 --> 18:09.120] As far as anyone knows, those were pictures of adult women. [18:09.500 --> 18:22.760] But in any event, the investigator called the Department of Homeland Security and the Customs Enforcement and all these people came in and they questioned this guy for several hours and they started going through his laptop in more detail and eventually they did find child pornography. [18:23.720 --> 18:34.080] So, this stands to... this raises the question of, you know, how many hours of interrogation might you get if you happen to have a legal pornographic picture on your hard drive? [18:34.800 --> 18:37.820] In this case, he also had illegal pornographic pictures on his hard drive. [18:37.820 --> 18:39.340] And so, he got charged. [18:39.790 --> 18:40.800] And he was convicted. [18:41.380 --> 18:45.540] And then, the district court, however, decided that... [18:46.620 --> 18:50.180] So, there's this Flores Montano case, which is from 2004. [18:51.400 --> 19:02.920] And it decided that, you know, it was legal for Customs to take a gas tank off of a car and take it apart and look at its contents without any suspicion. [19:03.040 --> 19:03.800] They could do that at random. [19:04.290 --> 19:11.340] And there's two different courts here who have sort of decided this Arnold case on the basis of that gas tank decision. [19:11.600 --> 19:12.940] One of them is the district court. [19:13.040 --> 19:25.100] And they decided that the gas tank case implied that there are certain contexts in which you have real privacy interests that might require a heightened suspicion from the Customs Service before they can violate those privacy interests. [19:25.260 --> 19:28.200] And so, they decided that reasonable suspicion was required to search the laptop. [19:28.200 --> 19:35.920] The Ninth Circuit made another... or they had a different view, really the opposite view, based on the same case. [19:36.400 --> 19:45.860] They, I guess, prior to 2004, had been employing this intrusiveness analysis to determine whether or not, you know, a search was justified at the border. [19:46.500 --> 19:53.800] And they felt that this gas tank case sort of threw out their intrusiveness analysis approach and that they had to allow any search of property. [19:54.020 --> 19:56.300] And so, they said, reasonable suspicion is not needed. [19:56.300 --> 19:59.740] All these laptop searches are legal with no reasonable suspicion at all. [20:01.790 --> 20:04.860] So, I don't agree with this Ninth Circuit holding. [20:05.040 --> 20:06.420] And I'm going to pick it apart a little bit. [20:06.820 --> 20:11.120] They say... they talk about it as if it's property. [20:11.400 --> 20:20.060] And the people who support this policy, who want these random searches happening, they use Flores Montano in a context where they talk about property in general. [20:20.260 --> 20:26.040] And that case, if you read it, very specifically limits itself to the context of vehicles and searches of vehicles. [20:26.800 --> 20:33.560] On Wikipedia, it says, complex balancing tests to determine... it paraphrases the Supreme Court case. [20:33.700 --> 20:40.200] It says, complex balancing tests to determine what is routine and what is intrusive have no place in border searches of property. [20:40.200 --> 20:42.360] And they put property in brackets in Wikipedia. [20:42.680 --> 20:48.020] The actual word in the Supreme Court decision is vehicles and not property. [20:48.020 --> 20:55.540] And so, it's possible that this rule only applies in the context of vehicles and doesn't apply for laptops at all. [20:55.800 --> 21:01.620] But this sort of logical sleight of hand is used in order to expand the scope of this decision. [21:03.200 --> 21:12.520] The Ninth Circuit... the Flores Montano case said that there were contexts in which a search was particularly offensive and therefore would require reasonable suspicion. [21:12.700 --> 21:14.560] A search of an alimentary canal, for example. [21:14.560 --> 21:23.500] The Ninth Circuit decided that particularly offensive... or did not apply in the context of a laptop search. [21:23.660 --> 21:25.800] And the reasoning they used was sloppy. [21:26.940 --> 21:30.580] They compared it to this case involving a mobile home. [21:30.800 --> 21:35.360] And there was a decision that they could search a mobile home without getting a warrant. [21:35.790 --> 21:37.540] Because mobile homes are mobile. [21:37.740 --> 21:48.160] And so, if they want to search this mobile home and they call in to get a warrant, someone could drive the mobile home to a different jurisdiction, and then their warrant won't apply and they won't be able to search it anymore. [21:48.730 --> 21:52.280] So, the court decided that they were able to search mobile homes without getting a warrant. [21:52.400 --> 21:54.740] But they still had to establish probable cause in order to do it. [21:54.800 --> 22:00.080] And if it turned out that they hadn't really established that, then retrospect, the evidence would be thrown out of court. [22:01.860 --> 22:06.580] But, you know, in that case, the person was saying, well, they need a warrant because it's mobile, but it is my home. [22:07.520 --> 22:09.500] So, they applied this analysis to the laptop. [22:09.700 --> 22:11.140] And they said it's the same situation. [22:12.560 --> 22:14.460] It's because you can carry it with you. [22:14.860 --> 22:17.600] No suspicion is required to search it. [22:17.680 --> 22:20.100] And that analysis, that analogy doesn't make any sense. [22:20.740 --> 22:22.000] The first is... [22:23.120 --> 22:24.960] Excuse me, my throat's drying out a little bit. [22:25.420 --> 22:27.140] If anyone's got any water, that would be awesome. [22:28.900 --> 22:35.560] But, anyway, the first issue is that a vehicle... [22:36.120 --> 22:39.220] Even though the vehicle was readily mobile and therefore they couldn't... [22:39.220 --> 22:42.460] They didn't have to go through the process of getting this warrant, which takes time. [22:42.800 --> 22:44.100] They still had to establish... [22:44.100 --> 22:44.720] Thank you very much. [22:44.800 --> 22:47.460] They still had to establish probable cause in order to search the vehicle. [22:47.620 --> 22:51.960] The standard of suspicion didn't change because the mobile home was mobile. [22:52.080 --> 22:56.540] It was just the process that they had to go through in order to establish that standard that changed. [22:56.540 --> 23:02.740] In this case, there's no time delay involved in assessing whether or not reasonable suspicion exists versus having a random search. [23:03.180 --> 23:10.200] So the whole concept that that time delay could cause you to have the object move to a different jurisdiction just doesn't apply here. [23:10.340 --> 23:15.580] So it makes absolutely no sense to use this precedent in this context. [23:15.840 --> 23:22.300] It's really confusing to read and almost confusing to explain because it makes little rational sense. [23:22.440 --> 23:23.060] It's very sloppy. [23:23.060 --> 23:29.080] I personally have this opinion that the Ninth Circuit, they got this case. [23:29.340 --> 23:30.340] They saw this guy. [23:30.460 --> 23:31.280] He's a pedophile. [23:31.420 --> 23:32.360] He was traveling overseas. [23:32.560 --> 23:36.040] He might have been doing it in order to molest children. [23:36.260 --> 23:37.500] He's really a bad guy. [23:38.000 --> 23:39.100] They got this case. [23:40.380 --> 23:41.900] There's evidence against him. [23:42.060 --> 23:47.460] And then they have this constitutional appeal where they say, well, they shouldn't have been able to search his laptop. [23:47.680 --> 23:49.300] And they're like, whatever. [23:50.520 --> 23:52.700] And I just don't think they took it very seriously. [23:52.700 --> 23:56.780] And they kind of threw together the sloppy decision that says, you know, case closed. [23:56.920 --> 23:57.400] He's going to jail. [23:57.860 --> 24:00.600] And I don't know if they took it very seriously. [24:00.720 --> 24:05.320] I have heard this rumor that... and it's not confirmed. [24:05.460 --> 24:06.620] And I really... I'm not a lawyer. [24:06.620 --> 24:08.120] So I don't know exactly how this works. [24:08.240 --> 24:12.800] But I've heard that they've decided to do an unblank review of this decision. [24:13.020 --> 24:16.300] And so the Ninth Circuit might be issuing a different decision in this case. [24:16.440 --> 24:18.200] I don't know why they're able to do that. [24:18.200 --> 24:22.680] But there was... after this decision was handed down, a few months later, there was a Senate hearing. [24:22.880 --> 24:25.180] And so they might have said, whoa, wait a minute. [24:25.300 --> 24:26.940] Maybe someone does care about this decision. [24:26.980 --> 24:29.360] And hey, it turns out we did a really sloppy job with it. [24:29.440 --> 24:30.960] So maybe we'll go back and take another look. [24:34.520 --> 24:38.000] So my hope... I'll get to that in a minute, actually. [24:38.540 --> 24:41.140] There's this other policy development in addition to that case. [24:41.260 --> 24:43.840] As far as I know, that case was decided by the Ninth Circuit. [24:43.960 --> 24:46.000] And the Ninth Circuit said, laptop searches are legal. [24:46.160 --> 24:50.400] And everyone who wants random laptop searches is, you know, celebrating that decision. [24:50.800 --> 24:55.980] Some people have come forward in the Senate hearing, in spite of how sloppy it was, and said, we think this was a very good decision. [24:57.580 --> 25:02.700] The other shoe is this anti-counterfeiting trade agreement, which was leaked to the press on May 22nd. [25:03.120 --> 25:04.380] It's this treaty. [25:04.660 --> 25:11.620] And we all know that one of the things the intellectual property interests will do is get an international treaty signed that defends their interests. [25:12.180 --> 25:17.220] Because once a treaty is signed, all these countries are beholden to enforce it. [25:17.340 --> 25:22.320] And it gets approved without going through the normal democratic processes in each of those countries. [25:22.320 --> 25:32.600] So, you know, Congress doesn't necessarily have the same kind of debate about enforcing a treaty that they would if these people sort of proposed these same rules as a local, like a United States law. [25:32.900 --> 25:37.300] So, they're trying to do that with this anti-counterfeiting trade agreement. [25:37.520 --> 25:40.180] And no one's really sure exactly what this thing says. [25:40.980 --> 25:45.240] There were just some details about it that were leaked, but not the full text. [25:46.080 --> 25:49.780] And there's this Canada.com, it's this newspaper. [25:49.780 --> 25:57.020] They said, this deal would create an international regulator that would turn border guards and other public security personnel into copyright police. [25:57.340 --> 26:04.420] Security officials would be charged with checking laptops, iPods, and even cellular phones for content that infringes on copyright laws, such as ripped CDs or movies. [26:04.940 --> 26:10.800] And so, you know, I think that if they looked at your iPod, there's no way they could tell that those MP3s were legal or not. [26:11.040 --> 26:23.340] But if they got your laptop and they went in and you're running bear share or something like that, and you have an outgoing directory, an incoming directory, and there's a bunch of files in those directories, I think that that's probably reasonable doubt that you had shared those things. [26:23.840 --> 26:31.300] So, you know, there really are... they may really be talking about having customs officials start searching laptops for MP3s. [26:35.440 --> 26:36.920] So what has happened? [26:37.320 --> 26:40.440] Will the Arnold case get appealed to the Supreme Court? [26:40.520 --> 26:41.380] I mean, it will be appealed. [26:41.460 --> 26:42.680] Will the Supreme Court take it? [26:42.720 --> 26:43.700] I hope so. [26:43.900 --> 26:45.620] But it's possible that they won't. [26:46.820 --> 26:56.980] Everyone... apparently there's been a few decisions that related to laptop searches and for various technical reasons, no court threw out a laptop search. [26:57.380 --> 27:02.740] This decision was specifically about whether that laptop search could be done without reasonable suspicion. [27:03.300 --> 27:04.960] And the court did not throw... [27:05.660 --> 27:08.300] the Ninth Circuit, you know, upheld the search. [27:08.500 --> 27:14.880] And so a lot of people were thinking, well, the Supreme Court's not going to take this because there seems to be a consensus across districts. [27:14.880 --> 27:19.220] Again, that's a view advocated by the people that like these laptop searches. [27:19.860 --> 27:24.000] It's possible that because there was a Senate hearing about this that maybe the Supreme Court will take it. [27:24.100 --> 27:24.520] We'll see. [27:25.140 --> 27:26.240] They get to decide. [27:26.900 --> 27:34.480] The Washington Post has reported that law firms are asking employees who travel to keep two laptops, a travel laptop that doesn't have any data on it. [27:34.840 --> 27:40.100] And when they're traveling overseas, they only put the information on that laptop that they need for that meeting. [27:41.580 --> 27:43.780] Some other corporations are doing similar things. [27:44.840 --> 27:47.360] Jennifer Granick posted advice for travelers. [27:47.540 --> 27:49.180] And I'm going to talk about that in a little bit more detail. [27:49.980 --> 27:56.000] The EFF wrote an open letter to Congress shortly after the Ninth Circuit handed down the Arnold decision. [27:56.140 --> 27:57.240] And they said, hold a hearing. [27:57.440 --> 27:59.560] And what's awesome is that they did. [27:59.780 --> 28:01.940] The Senate held a hearing on June 20th. [28:02.280 --> 28:03.840] So that's great news. [28:04.780 --> 28:11.080] And the EFF has also joint filed a Freedom of Information Act suit to learn more about border search practices. [28:12.880 --> 28:19.740] There's a group that represents Muslim Americans that testified at the Senate Judiciary Committee. [28:19.920 --> 28:26.820] And they had a lot of interesting testimony about the kinds of things that their members have been subjected to. [28:27.320 --> 28:34.520] There's an example of a guy that wrote an editorial for the Toledo Blade that was critical of U.S. government policy. [28:35.540 --> 28:37.240] And then he showed up at a border checkpoint. [28:37.240 --> 28:38.160] And he was searched. [28:38.360 --> 28:44.400] And the border guards picked up this editorial and started asking him questions about his political views. [28:44.720 --> 28:47.260] So things like that are pretty questionable. [28:47.640 --> 28:55.160] So there's some additional context around this where they think that certain people are being unnecessarily and unfairly singled out. [28:56.920 --> 29:06.100] So before we go on with the policy discussion, what can you do to protect yourself from getting your personal stuff searched at the border? [29:06.520 --> 29:09.780] One thing that people wonder is, well, I'll just encrypt my files, right? [29:10.020 --> 29:14.400] Well, they can, as I said earlier on, they can ask you for your encryption keys. [29:15.080 --> 29:23.680] There was a federal court that ruled recently, it's not the Supreme Court, but they ruled that you have a Fifth Amendment right to refuse to reveal your password. [29:24.220 --> 29:26.580] You have a right not to incriminate yourself. [29:26.840 --> 29:29.220] But there are people who don't agree with that ruling. [29:29.780 --> 29:33.520] Oren Kerr, who's a law professor at GWU, he's a very smart guy. [29:34.420 --> 29:39.120] But, you know, he often... I think sometimes he sides with the authorities. [29:39.180 --> 29:41.420] He used to be a Department of Justice prosecutor. [29:41.680 --> 29:47.060] But he said, the password itself is not incriminating, only the information it protects. [29:47.280 --> 29:50.020] And so the Fifth Amendment can't protect the password. [29:50.780 --> 29:52.780] That's his... I don't agree with that reasoning. [29:53.000 --> 29:56.160] But he's a serious guy, has seriously made that argument. [29:56.580 --> 29:59.280] And that argument might end up being upheld by the court. [30:00.720 --> 30:04.240] So, for now, it's an interesting subject. [30:04.480 --> 30:06.640] If it comes up again, the courts will consider it further. [30:07.320 --> 30:09.300] The agents could detain you for days. [30:10.480 --> 30:12.640] They could seize your laptop and send you on your way. [30:12.720 --> 30:17.700] They seem to do that rather frequently, even if we don't have an issue where you're refusing to turn over a password. [30:18.980 --> 30:21.080] They could also deny you entry in the U.S. [30:23.860 --> 30:27.380] They don't know... And no one has delved into this in too much detail. [30:27.540 --> 30:32.360] If you are a U.S. citizen, it's apparently difficult for them to absolutely deny you entry into the country. [30:32.720 --> 30:38.700] I'm sure that the customs agents could tell you to go back and... Yeah. [30:39.440 --> 30:46.560] So... That could be an interesting kerfuffle if it actually occurred. [30:47.240 --> 30:51.540] So there's this thing called TrueCrypt that people are using. [30:52.660 --> 30:54.900] This is my personal view on TrueCrypt. [30:55.440 --> 30:58.200] Number one, customs forensics agents are computer savvy. [30:58.440 --> 31:00.060] These aren't... These people aren't stupid. [31:00.780 --> 31:04.400] TrueCrypt can be detected even in travel mode by inspecting the registry. [31:04.680 --> 31:10.080] And if I was a customs agent and I was expecting people to do this, I would look for that registry key. [31:11.160 --> 31:13.560] The TrueCrypt bootloader can be detected. [31:13.760 --> 31:18.020] They just released this new version of TrueCrypt that allows you to have a complete operating system that's hidden in your bootloader. [31:18.020 --> 31:26.140] But of course, the bootloader is in the master boot record on your hard drive and they could check for it with a forensics tool. [31:26.280 --> 31:27.800] So they can detect that you're using this. [31:27.920 --> 31:29.820] And so what do you... What happens when they detect it? [31:29.980 --> 31:33.960] Well, you can deny that there's a hidden OS or a hidden file system and they can detain you. [31:34.880 --> 31:37.700] And they could detain you for several days hoping that you'll fess up. [31:38.140 --> 31:42.640] So that's not... That's not fun and I don't recommend... I definitely don't recommend lying to customs. [31:42.920 --> 31:46.520] You don't want to become the martyr for border searches. [31:47.360 --> 31:55.540] The other thing... The other thing... I mean, there may be other steganography that's more effective depending upon what they're looking for and what their techniques and tactics are. [31:55.620 --> 31:58.360] And I don't know what their techniques and tactics are necessarily. [31:59.900 --> 32:01.660] I can't pronounce this guy's last name. [32:03.440 --> 32:03.880] Sohanian? [32:04.920 --> 32:05.360] Sogahan. [32:05.580 --> 32:05.740] Okay. [32:06.060 --> 32:06.980] Christopher Sogahan. [32:07.260 --> 32:10.580] This is a very sort of practical approach from a logical standpoint. [32:10.820 --> 32:24.620] He said, wipe your laptop, you know, encrypt your data and put it on a file server and then go where you're going, download this encrypted data block over the Internet, decrypt it, use it, and then re-encrypt it and re-upload it and wipe your laptop again before you get back on the plane. [32:25.120 --> 32:25.860] This works. [32:26.960 --> 32:37.420] And this... What I like about this is it really points out the absurdity of this whole policy because you can use a process like this to completely avoid having any information with you when you physically cross the border. [32:37.420 --> 32:43.420] But this is not... This is not a very practical way to approach this problem for most people. [32:43.580 --> 32:44.540] It's very, very slow. [32:45.060 --> 32:50.620] And it... And it... You know, it's very difficult to... To live this way. [32:52.160 --> 32:55.220] What I think we should do instead is advocate that the policies change. [32:55.560 --> 32:56.800] And that's really why I'm here. [32:57.220 --> 33:00.340] We should not be afraid to fly overseas with our laptops. [33:01.300 --> 33:04.480] And I also think that it's important to get the policy right. [33:04.580 --> 33:08.800] We constantly in the scene get into these situations where we think the government is doing something wrong. [33:08.980 --> 33:12.280] And so what we do is we develop these technologies that allow you to get away with it anyway. [33:12.580 --> 33:17.060] And the problem is that the bad people... There are bad people out there. [33:17.160 --> 33:19.180] And bad people will end up using these technologies too. [33:19.580 --> 33:24.380] And the fact that there's a lot of innocent people using them creates all this cover traffic for the bad stuff. [33:24.760 --> 33:24.980] Right? [33:25.400 --> 33:30.700] So if we actually had good policy that said that, you know, we... We're not... This is America. [33:30.880 --> 33:32.040] We're not randomly searching people. [33:32.480 --> 33:34.980] Innocent people wouldn't feel like they would need to use TrueCrypt. [33:35.620 --> 33:41.800] And, you know, the fact is that we wouldn't end up providing tools to people who are actually up to no good. [33:41.960 --> 33:47.040] So, you know, I think that there really is a good argument for getting the policy right. [33:48.600 --> 33:58.700] And I have several arguments and I'm going to present them because those of you who are interested in this subject are going to go out into the Internet and at least one of you is going to end up in an argument with someone about this. [33:59.240 --> 34:03.960] So should know what the... Here's some ammunition for that pending argument. [34:04.160 --> 34:14.460] The first is that these guys say, well, customs has this historic ability to search any piece of luggage coming into the United States and a laptop is no different from a businessman's briefcase. [34:14.580 --> 34:17.920] It's the same thing and we should use the same policies that we always have. [34:18.200 --> 34:19.540] Well, I disagree with that. [34:19.640 --> 34:21.140] Computers are not just like luggage. [34:21.660 --> 34:26.080] By default, luggage contains nothing and you only pack the things you want to bring on your trip. [34:26.820 --> 34:28.260] Computers contain everything. [34:28.460 --> 34:31.420] They contain all of your correspondence and all of your personal information. [34:31.420 --> 34:37.280] And the only way that you can cleanse them for trip is to remove things that you don't want the customs to see. [34:37.680 --> 34:40.840] That's a totally different process and it's actually very difficult to do. [34:41.620 --> 34:42.700] Technology has changed. [34:42.940 --> 34:49.240] The scope of personal information that people carry with them in these devices has massively expanded over the past ten years. [34:49.700 --> 34:57.960] And as I said earlier, these drug war-era rationalizations that we need to search this stuff in order to find cocaine, you know, just don't make sense in this high-tech context. [34:57.960 --> 34:59.140] It's completely different. [35:01.680 --> 35:10.380] John Perry Barlow once famously said, and this has been paraphrased by a lot of people, you can have my encryption algorithm when you pry my cold dead fingers from its private key. [35:11.080 --> 35:15.820] People do not want to show up at the border and have some customs agent ask them for their encryption key. [35:16.340 --> 35:24.480] You know, and frankly, I can understand the indignation of people who would say, you know, f*ck you, I'm not telling you what my password is. [35:25.460 --> 35:27.480] That's my privacy you're violating. [35:27.720 --> 35:34.700] And, you know, unfortunately, people who do stand up to these customs agents and say, no, I'm not giving you my key, you know, they might end up getting detained. [35:34.920 --> 35:36.420] They might end up having their equipment seized. [35:36.540 --> 35:38.320] But at the same time, I kind of understand their perspective. [35:38.480 --> 35:41.640] I think it's, you know, to a certain extent, it's a brave thing to do. [35:42.460 --> 35:51.700] You know, and Peter Squire from CAP, when he was testifying at the Senate, he drew an analogy between this debate and the clipper chip debate from the early 1990s. [35:51.800 --> 35:53.180] And he said, this is very similar. [35:53.380 --> 35:55.520] We're asking for access to people's private information. [35:55.520 --> 35:57.900] We're asking for access to their encrypted data. [35:58.340 --> 36:02.120] And, you know, people might necessarily resist that pretty strongly. [36:03.640 --> 36:11.340] You know, I don't believe that the Fourth Amendment, when the Fourth Amendment says, I think that when the Fourth Amendment says unreasonable searches, it means no searches without a reason. [36:11.340 --> 36:12.880] It means no random searches. [36:13.060 --> 36:13.680] That's what I think. [36:14.280 --> 36:20.340] I certainly don't think that there is some ancient right of the sovereign to randomly search people's stuff that applies in the United States. [36:20.760 --> 36:25.020] If it does exist, it certainly hasn't been proven by the case precedents that we have. [36:25.140 --> 36:26.320] I think they're very sketchy. [36:26.440 --> 36:29.040] I showed you in this presentation why I think they're sketchy. [36:29.500 --> 36:31.760] And they're from the late 70s and early 80s. [36:31.840 --> 36:34.360] They're not from, you know, the 1780s. [36:34.360 --> 36:38.080] And the law in the 1780s required reasonable suspicion. [36:38.320 --> 36:40.500] And I think it ought to require reasonable suspicion today. [36:41.440 --> 36:43.360] And furthermore, random searches are inefficient. [36:43.640 --> 36:48.000] This is something even the conservatives in this debate will concede. [36:48.140 --> 36:50.860] That, you know, this is not the right way to find terrorists. [36:50.980 --> 36:53.180] This is not the right way to find drug traffickers. [36:53.180 --> 36:55.360] You should find... you should have a reason to suspect people. [36:55.440 --> 36:59.020] And you should focus limited resources on the people that you have a reason to suspect. [37:01.000 --> 37:06.780] This is... this is the... what I... what I consider the most gapping hole in the reasoning behind this entire thing. [37:07.560 --> 37:09.860] People don't smuggle information in laptops. [37:10.460 --> 37:12.100] They smuggle them over the Internet. [37:12.900 --> 37:13.980] We all know this. [37:14.140 --> 37:23.440] If Customs was really working on some sort of comprehensive plan to prevent the smuggling of illegal information, they would be surveilling international telecommunications links and not searching people's laptops at the border. [37:23.640 --> 37:29.140] This whole thing is just a loophole in the law that was created to find narcotics that they're applying to laptops. [37:29.380 --> 37:33.960] It is not a comprehensive policy where they're going out there and trying to prevent information smuggling. [37:34.160 --> 37:36.440] It... it bears no resemblance to such a policy. [37:37.920 --> 37:46.960] The same... information that they claim the right to investigate when it's on your laptop at the border would be protected by a warrant requirement if it was being sent over the Internet. [37:47.860 --> 37:57.040] The... the FISA... and particularly the recent update to FISA even made this... made this... this warrant requirement more onerous for the police than it was before with... in the context of American citizens. [37:58.600 --> 38:02.600] So... so it makes absolutely no sense that... that if I send it over the Internet, they have to get a warrant. [38:02.720 --> 38:05.260] But if I bring it on... on a floppy disk, they can... they can look at it. [38:05.340 --> 38:05.820] That's ridiculous. [38:06.460 --> 38:10.180] Uh... and so... I... I... I advise you to do... uh... two things. [38:10.300 --> 38:13.020] The first is... potentially contact your congresspersons. [38:13.380 --> 38:15.780] Uh... and... and... you know... be respectful when you do this. [38:15.860 --> 38:16.540] Don't be an asshole. [38:16.760 --> 38:17.660] No one likes assholes. [38:18.260 --> 38:21.980] Uh... you know... if you're talking to a member of the Senate Judiciary Committee... [38:22.740 --> 38:24.220] Uh... thank them for holding a hearing. [38:24.400 --> 38:25.560] It's very important that they did. [38:25.720 --> 38:28.500] And... and... you know... on both sides of the aisle... [38:28.500 --> 38:31.200] Uh... the perspectives offered at that hearing were very balanced. [38:31.360 --> 38:34.680] Uh... and there's concern all around about... uh... the privacy issues here. [38:34.680 --> 38:36.780] Senators have Blackberries and they have laptops. [38:37.100 --> 38:40.000] And they get searched when they go places like China, for example. [38:40.200 --> 38:41.280] And they're concerned about that. [38:41.380 --> 38:46.100] And if we... do the same thing in the United States, we're gonna have a hard time arguing that China shouldn't do it. [38:46.400 --> 38:49.340] And so... um... this is something that is really a concern for them. [38:49.480 --> 38:52.040] And... and... and... and that's one of the ways we might win this argument. [38:52.280 --> 38:54.460] That... that those people share our same worries. [38:55.260 --> 39:00.160] Uh... you know... tell them that customs should not be allowed to perform searches of laptops without reasonable suspicion. [39:00.560 --> 39:01.520] It's very simple. [39:02.100 --> 39:04.140] Uh... and reasonable suspicion is not a very high standard. [39:04.420 --> 39:06.380] It's not gonna stop them from busting bad people. [39:06.980 --> 39:11.940] Uh... and... and I would also ask you to tell them that customs must perform a privacy impact assessment. [39:12.100 --> 39:15.020] We don't know how many of these searches are really going on. [39:15.160 --> 39:17.040] We don't know how many people have been targeted. [39:17.140 --> 39:18.540] We don't know how much equipment is seized. [39:18.820 --> 39:25.640] We don't know if the data on that gear is being copied or how long it's being stored or who's being... who's... has access to it, what it's being used for. [39:26.020 --> 39:27.900] Uh... these are very interesting questions. [39:28.180 --> 39:30.120] Uh... and I think the public has a right to know. [39:30.280 --> 39:41.460] Is there some huge, uh... you know... hard drive repository somewhere in some customs, uh... building that has all kinds of hard drives from the 7% of business travelers who are having their... their laptops seized. [39:41.860 --> 39:44.060] Uh... and every once in a while they're sort of data mining this stuff. [39:44.140 --> 39:44.740] Is that happening? [39:44.900 --> 39:45.460] It could be. [39:45.600 --> 39:46.240] And no one knows. [39:46.380 --> 39:48.820] Because no public communication has been issued about it. [39:48.920 --> 39:49.980] So... we need to know. [39:50.920 --> 39:51.780] Uh... there's the... [39:51.780 --> 39:55.520] Center for American Progress launched this campaign, like, on Thursday. [39:55.940 --> 39:58.560] It's called handsoffmylaptop.com. [40:00.060 --> 40:04.920] Uh... they... what they're... this is like a... sort of a... uh... sort of a writing campaign. [40:05.120 --> 40:08.920] You... you go to their website and there's a form there and you can fill it out and click send. [40:09.160 --> 40:11.840] Uh... and it sends comments to the U.S. [40:11.920 --> 40:12.480] Customs Service. [40:12.800 --> 40:17.000] Uh... and it asks them, uh... to perform that privacy impact assessment that I mentioned. [40:17.480 --> 40:19.380] Uh... there's a guy from CAP here. [40:19.380 --> 40:28.380] Uh... and he told me that they have had 1,700 different people sign up, uh... uh... use this form in the past, you know, few days. [40:28.600 --> 40:30.100] This thing was launched, like, Thursday or Friday. [40:30.380 --> 40:31.800] Uh... so that's pretty impressive. [40:32.380 --> 40:43.300] Um... you know, if... if... if we go out and we mention it on our blogs and the like, uh... you know, you could see a substantial amount of people, uh... uh... um... responding to this thing. [40:43.300 --> 40:47.440] And... and that could have a big impact on, uh... the perception that this is a niche issue. [40:48.040 --> 40:51.900] Um... you know, people need to understand that... that there are a lot of people who are concerned about this. [40:52.420 --> 40:57.520] Uh... fortunately, along those lines, there was a... also a New York Times editorial about this subject a few weeks ago. [40:57.620 --> 40:58.520] So that was also helpful. [40:59.440 --> 41:06.620] Um... and so, um... I... before I... I go into questions, I... I have one other comment about this subject in general. [41:16.380 --> 41:20.320] Um... and... and, uh... you know, I... I was really thinking about that as I wrote this presentation. [41:20.560 --> 41:22.400] So I wrote this... this... this ending comment. [41:22.580 --> 41:26.740] And I think, you know, it's... it's not really about whether or not you've got something to hide. [41:26.900 --> 41:29.200] It's... it's about whether or not you have to think about it. [41:29.860 --> 41:32.820] Uh... a... a criminal lives life looking over his shoulder. [41:33.060 --> 41:34.500] He doesn't... he knows he's up to no good. [41:34.500 --> 41:37.320] He knows he could be targeted for... because he's up to no good. [41:37.520 --> 41:39.120] He knows people are gonna be watching him. [41:39.240 --> 41:42.760] And so he's gotta constantly, uh... you know, take care of everything that he does. [41:42.920 --> 41:47.740] He's gotta look and see if he's being spied upon and, you know, put things under his mattress, et cetera. [41:47.940 --> 41:48.940] He has to live in fear. [41:49.400 --> 41:50.920] Um... and he deserves to live in fear. [41:51.040 --> 41:51.640] He's up to no good. [41:52.100 --> 41:54.380] Uh... but innocent people should not have to live in fear. [41:55.140 --> 42:06.160] Uh... and... and... and if they... if there is a... if they're... if they're being targeted by the police at random, then they have to think every time they do something, Is this something that could be misconstrued by the police when they go through it? [42:06.320 --> 42:08.460] Are they going to get the wrong idea about this? [42:09.200 --> 42:10.920] What are they going to say if they look at this? [42:11.040 --> 42:21.980] Maybe I just don't want this item on here because I don't want some customs agent to look at it just because it's personal and I don't feel like it's any other business. [42:22.260 --> 42:23.180] Now I've got to think about it. [42:23.280 --> 42:28.320] Every email I send, every document I store on my hard drive, I've got to think, what is customs going to think about this when they see it? [42:28.320 --> 42:35.220] And over time, you know, this becomes this sort of self-censorship mechanism that becomes ingrained in people's heads. [42:35.500 --> 42:39.780] This is what happens in oppressed societies and people become very paranoid. [42:40.100 --> 42:45.920] And the fact is that their lives become diminished and they become dominated by this fear. [42:46.060 --> 42:47.740] And that's really what we're fighting. [42:48.040 --> 42:50.200] It will change the nature of our society. [42:50.320 --> 42:51.140] It will change who we are. [42:51.340 --> 42:54.480] And that's why we can't allow this to go on. [42:54.660 --> 42:57.120] So that's my talk. [42:57.120 --> 42:59.680] So thank you very much for your time. [42:59.820 --> 43:06.820] It's very important that you're all here listening to this and that you took time out to focus on this because it helps communicate that this is important. [43:06.920 --> 43:08.780] And I will take questions if you've got them. [43:20.820 --> 43:21.940] So... Question? [43:22.960 --> 43:27.860] There's an interesting approach to data encryption that applies to this subject. [43:27.880 --> 43:32.200] And there's a Linux kernel module that implements it. [43:32.360 --> 43:34.040] It's called rubber hose encryption. [43:35.200 --> 43:39.020] The idea is that you have two private keys. [43:39.480 --> 43:47.780] One that decrypts the data in such a way that it's fake data and it's what you want the decrypting party to see. [43:48.000 --> 43:52.780] And then you have your real private key that decrypts your real data. [43:52.920 --> 43:57.140] So I was just wondering what your opinion is on that approach. [43:57.140 --> 44:00.880] I mean, the devil is in the details. [44:01.000 --> 44:02.780] And so I'm not familiar with that kernel module. [44:02.900 --> 44:05.120] I'd have to go look it up and thank you for mentioning it. [44:05.620 --> 44:10.920] But it all depends upon whether or not they can tell that that tool is running. [44:11.100 --> 44:20.560] And if they know that tool is running, even if they don't know that there's secret data there, it implies that there's secret data there. [44:20.740 --> 44:24.800] And that gives them a pretense with which to put pressure on you. [44:25.200 --> 44:30.980] And that pressure may be very uncomfortable even if they don't end up reading your private information. [44:30.980 --> 44:35.120] You might be better off having them go through your email than to have them put you in a room for three days. [44:35.560 --> 44:37.760] So that's something that you've got to consider. [44:39.900 --> 44:41.500] First of all, excellent presentation. [44:41.700 --> 44:41.980] Thank you. [44:41.980 --> 44:42.400] Thank you. [44:42.920 --> 44:44.040] Just one quick comment. [44:44.220 --> 44:48.100] This doesn't change the problem or fix it by any means, but may help somebody in a pinch. [44:48.260 --> 44:51.760] I've had my laptop searched randomly several times in the airport. [44:52.000 --> 44:54.980] I've never had my flash drive searched if it's in my pocket. [44:55.500 --> 44:56.620] Goes through with my keys. [44:56.720 --> 44:57.340] Nobody ever bothers. [44:57.620 --> 45:01.180] So, you know, 12, 20 gigs will fit in something like this. [45:01.500 --> 45:03.320] And it's never been searched yet. [45:03.460 --> 45:08.040] So you might want to put your encrypted stuff on here and then your less important stuff on the laptop for a trip. [45:11.800 --> 45:14.680] Hi, I'm Nick LeVay with the Center for American Progress. [45:15.020 --> 45:20.440] I'd just like to fill some folks in on some details with the Hands Off My Laptop action campaign. [45:20.720 --> 45:27.080] If you go to the page right now, it pretty much just asks for a bunch of your personal information. [45:27.080 --> 45:29.240] So I'd like to tell you what that's used for. [45:29.620 --> 45:32.140] Like your address and name and stuff like that. [45:32.140 --> 45:39.020] Basically, what we're doing is we're very strategically pushing them to do a privacy impact assessment. [45:39.780 --> 45:41.960] Specifically, the CBP upper management. [45:42.160 --> 45:48.020] We're targeting the commissioner, deputy commissioner, chief of staff, media relations, and their international travel specialists. [45:48.720 --> 45:54.640] And basically, if we can get them to do an impact analysis, we force them to talk about it. [45:54.640 --> 45:59.440] And the discussion space grows wider and that will play out on the Hill better. [45:59.820 --> 46:03.800] We directly talk to the lawmakers on the Hill about this as well. [46:03.960 --> 46:05.260] It's not just email flack. [46:05.540 --> 46:16.960] And if you sign up for the action campaign, down the road whenever we have to make our next strategic move, like maybe six months from now, it's not a privacy impact assessment we're looking for, but it's something else that we need to keep it moving. [46:17.100 --> 46:22.040] We'll email you back and tell you, hey, this is the next thing you can do to help this process along. [46:22.040 --> 46:28.100] The numbers I got recently, as of Friday afternoon, we had 1,700 respondents. [46:28.460 --> 46:33.820] If that follows our normal trends, it'll be about 7,000 by the end of the week. [46:34.200 --> 46:37.220] So I really want to encourage you to sign up for this. [46:37.400 --> 46:39.420] We do really safeguard your privacy. [46:39.960 --> 46:46.440] We think the odds of you winding up on some type of watch list because of getting on this action campaign is very low. [46:46.620 --> 46:57.040] And frankly, if it happened, it'd kind of be a strategic win for us, because a lot of media people are on that same list, a lot of lawmakers are on that list, and a lot of polio-influentials. [46:58.080 --> 46:59.960] So just thank you for your support. [47:00.400 --> 47:01.720] And this is an important issue. [47:06.590 --> 47:06.990] Hi. [47:07.050 --> 47:08.530] Thanks for such a lucid talk. [47:08.650 --> 47:12.330] But I came in a little bit late, so I apologize if you addressed this. [47:12.330 --> 47:27.270] But with regard to the efficiency of random searches and the suggestion that we, you know, you target people who are suspicious in behavior, you know, have you heard of the carnival booth algorithm and how that might be, displays a weakness in that kind of screening? [47:27.610 --> 47:31.790] So very briefly, the idea is that terrorists tend to operate in cells. [47:32.130 --> 47:36.510] And this was used as an argument against some of the don't fly and profiling activity. [47:36.510 --> 47:52.470] So if normally you search randomly 5% of the time, but you think, I know, I'm going to target the bad guys with a list, and I'm going to change my resources so that, you know, 10, 20% of the suspicious people get searched, and only 2% of, you know, regular folks get searched, [47:52.970 --> 47:57.790] then what happens is the terrorist cell can go forward and it starts sending people through clean. [47:58.010 --> 48:00.950] Just absolutely, you know, they're not doing anything bad, they're just flying around the country. [48:01.130 --> 48:07.610] And eventually they will work out which one of them are flagged in the system or which one of them are identified as suspicious, and which one are not. [48:07.850 --> 48:18.630] And then the problem happens is then, because you're no longer randomly searching, you've dropped your chances of detecting them from 1 in 20, which would be 5%, to maybe 1 in 50, which would be, you know, 2% or something similar. [48:18.870 --> 48:24.490] So in that case, that's an argument for random searches as opposed to trying to do more targeted searches. [48:24.550 --> 48:26.650] I'd just be interested to see what your response was to that. [48:27.090 --> 48:27.890] That's interesting. [48:28.190 --> 48:32.210] I haven't...so did you see the carnival booth? [48:32.410 --> 48:34.130] It's called the carnival booth algorithm. [48:35.510 --> 48:36.430] Okay, I will. [48:37.750 --> 48:40.190] I don't have like a canned answer to that. [48:40.850 --> 48:47.890] So, you know, one thing I will point out is that there is this thing called ATS, which is Automated Targeting System. [48:48.410 --> 48:53.050] It's a pretty basic profiling tool that Customs uses at U.S. [48:53.130 --> 48:53.350] borders. [48:53.610 --> 49:02.710] It looks at things like when you bought your ticket, what your name is, you know, what phone number you gave, what address you gave, et cetera, et cetera, on your ticket. [49:02.710 --> 49:05.150] It's been the subject of a fair amount of controversy. [49:05.350 --> 49:08.530] There's weird conflicts between it and EU privacy laws. [49:08.750 --> 49:10.310] There's privacy groups in the U.S. [49:10.370 --> 49:13.590] who thought it was too expansive. [49:13.990 --> 49:16.870] And at least a few years ago, I think some changes were made to it. [49:16.930 --> 49:18.830] I'm not sure if everyone's cool with it now or not. [49:18.830 --> 49:32.890] But, you know, they did identify one individual who came into the United States in Minnesota, or Minneapolis, no, it's Minnesota, you know, through this process. [49:32.890 --> 49:35.670] So, they did identify somebody this way. [49:36.490 --> 49:43.610] The number of terrorists versus the total number of people that are traveling into this country every day is extremely small. [49:44.110 --> 49:55.270] And so, you know, you may find that it's very, very difficult to actually happen upon someone, regardless of what algorithm you're using, when you really look at the real numbers. [49:55.430 --> 49:57.530] But I will take a look at it. [49:57.590 --> 49:58.350] And thanks for bringing that up. [50:00.410 --> 50:01.970] I appreciated your presentation. [50:02.330 --> 50:17.030] As a civil rights and criminal defense attorney, though, I wanted to point out that the distinction that you made between innocent people having to look over their shoulder and criminals, who you suggested, might have to look over their shoulders, I think is too facile. [50:17.310 --> 50:22.770] And maybe you were thinking in terms of real criminals, hardened criminals, terrorists. [50:22.770 --> 50:31.670] But apart from the fact that criminals have rights too, of course, the distinction between criminal and innocent is much more nuanced and really breaks down. [50:31.810 --> 50:43.170] I mean, not only do we have increasing numbers of flagrantly unconstitutional criminal statutes in this country these days, measured against any reasonable standard of what's constitutional. [50:43.390 --> 50:44.230] I mean, so much so... [50:45.410 --> 50:51.130] I mean, we've really gone through the looking glass, even, in trying to discuss these things in a kind of constitutional framework. [50:52.110 --> 51:08.850] But there are myriad ways, I mean, you know, this isn't the place to address them, but there are myriad ways in which seizure of private material can be used against people who have technically broken the law under some statute, but used for really insidious and deleterious purposes. [51:09.090 --> 51:20.030] I mean, probing, you know, what really amounts to thought crime and prosecutions that target people for ideas and speeches and constitute full-frontal assaults on the First Amendment these days. [51:20.970 --> 51:25.250] I absolutely agree with, I think, both of the arguments you're making, and I think you made two distinct ones. [51:25.890 --> 51:39.670] I guess the reason I didn't focus on them in that particular statement is that I think the people who raise the objection that if you're not a criminal, you have nothing to hide, you know, believe that the police are always forthright in what they're doing and believe that the laws that we have are always reasonable. [51:40.170 --> 51:42.290] And neither of those assumptions is correct. [51:42.590 --> 51:51.950] But, you know, I think there are arguments, even if you accept those two assertions, that there are reasons why you might reject a policy of random searches. [51:51.950 --> 51:55.250] And so, basically, that's the reasoning for the way that I presented things. [51:55.370 --> 51:55.750] But thank you. [51:55.850 --> 51:56.550] Thank you for saying that. [51:59.290 --> 52:00.090] Thank you. [52:00.090 --> 52:00.410] Hi. [52:00.750 --> 52:03.090] I just want to say it's really not at the border anymore. [52:03.850 --> 52:15.330] If you're traveling, a college student, upstate New York, Syracuse, anywhere there, if they're not very white, if they're Asian, if they're dark, they will be pulled off that bus at the Syracuse bus station. [52:15.330 --> 52:19.930] That's a long way from the Canadian border by Homeland Security and Customs. [52:20.090 --> 52:21.790] And they will ask you for your papers. [52:22.450 --> 52:35.750] There was a decision that said that the border zone extends to several hundred miles outside of the border as long as, like, it's customs officials and they claim to be on some sort of border-related business. [52:36.250 --> 52:37.850] They can, you know, like, they pull... [52:37.850 --> 52:41.810] The specific context was a car that was pulled over in Vermont, like, a hundred miles from the border. [52:42.350 --> 52:44.470] And they argued that it was a border search. [52:44.470 --> 52:46.890] Well, I'm a professor at the university up there. [52:46.910 --> 52:50.170] And they particularly went for anyone that was foreign-looking. [52:50.430 --> 52:53.950] And they went down the aisle of the bus and said, where are your papers? [52:53.950 --> 52:54.510] Oh, yeah. [52:54.650 --> 52:55.090] To everybody. [52:55.730 --> 52:56.170] So... [52:57.970 --> 53:01.510] No, but there was... the students got pretty pissed off, let me tell you. [53:01.770 --> 53:03.410] They were very shocked at that. [53:03.510 --> 53:04.530] So, just to be aware. [53:05.690 --> 53:08.410] We're running close to the end of time, folks. [53:08.590 --> 53:11.290] But I'll take questions until they kick us out. [53:11.590 --> 53:12.430] Just one more question. [53:12.430 --> 53:12.890] I've got... [53:12.890 --> 53:13.010] Okay. [53:13.170 --> 53:13.750] One more question. [53:13.850 --> 53:14.510] Two quick questions. [53:14.870 --> 53:15.370] One... [53:15.370 --> 53:15.690] Sorry. [53:17.270 --> 53:17.970] Pick the good one. [53:18.530 --> 53:19.310] Oh. [53:19.690 --> 53:26.200] Well, then, I came here from Chicago via Amtrak. [53:26.830 --> 53:36.550] And in Erie, Pennsylvania, Border Patrol also gets on the Amtrak train and asks everyone, you know, are you an American? [53:37.050 --> 53:44.070] And if you say no, they ask for your papers, you know, can they extend searching your stuff to that too? [53:44.330 --> 53:44.770] Wow. [53:44.770 --> 53:46.550] When you're not near a border. [53:46.890 --> 53:47.550] That's a... [53:47.550 --> 53:48.910] That's an interesting question. [53:49.150 --> 53:49.930] I hadn't... [53:49.930 --> 53:50.610] I didn't know that. [53:50.730 --> 53:51.270] I hadn't read... [53:51.270 --> 53:53.250] I've never read a case about that. [53:54.290 --> 53:57.030] But that implies that the question hasn't been answered. [53:57.990 --> 54:02.650] So it may be something that they could at least get away with until they had a court that told them they couldn't. [54:03.090 --> 54:03.250] Yeah. [54:03.890 --> 54:05.990] So, anyway, I guess I got to call this. [54:06.130 --> 54:07.210] But thank you very much for your time. [54:07.410 --> 54:10.810] And I'll be happy to talk about this some more in the back or outside. [54:14.030 --> 54:14.570] All right. [54:14.770 --> 54:16.050] Not really a question. [54:16.210 --> 54:17.530] Just a quick comment. [54:17.930 --> 54:18.510] If something... [54:18.510 --> 54:19.230] We have to...