How Is This Not Thought Policing?

Someone suggested to me yesterday that the concessions Americans are asked to make in order to fly from state to state or out of the country pale in comparison to those made in a country like Israel, where terror isn't a threat, but a daily reality. I'll concede that I prefer getting the wand from a disgruntled TSA employee to Katyusha rocket fire from Islamic militants, but I also think the Department of Homeland Security should have a justifiable reason for its policies, the newest of which, supported by the 9th Circuit Court of Appeals ruling in April, allows the confiscation of one's laptop:

Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and analyze information." This may take place "absent individualized suspicion."

The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "

The assertion that traveling outside the country negates a U.S. citizen's unenumerated right to privacy is bogus. "The government has other ways of getting what's on your laptop even when you're not traveling." That is absolutely true...with a warrant or a subpoena. And I hate to be the guy that asks the dumb question, but where's the immediate threat? A body search could reveal plastic explosives, an uber sharp steak knife, a disassembled firearm, or a spool of sharp dental floss, but what's the harm in a flash drive loaded with the Colonel's secret recipe or a Harlequin romance novel? Oh, right, this isn't about the immediate threat. This is about fighting terror through engendering paranoia in the very people DHS intends to protect. (Mike Masnick at Techdirt deconstructs DHS' dubious rationale here.)

And seeing as agencies can share the information they confiscate, what's to keep the DHS from forwarding evidence of your illegally downloaded music library to the FBI? Somewhat less scary—what would stop some conniving government tool from ripping that erotic home video you and the honey made, and anonymously posting it on Youporn.com?

Check out reason's expose on TSA here. I blogged on the TSA here. DHS Friday Funny here. Jonathan Rauch on dumb DHS policies here.

Comments

DHS official | August 1, 2008, 12:29pm | #

I've got you laptop right here, Riggs.

Jerry | August 1, 2008, 12:29pm | #

Just transfer the information you need from abroad using one-time pad security once you are past border control.

Old Bull Lee | August 1, 2008, 12:31pm | #

Thanks to movies like the most recent Die Hard, there are a lot of morons who think computer magic can cause things to randomly blow up and catch on fire.

Consider the technical knowledge level or your average politician.

R C Dean | August 1, 2008, 12:35pm | #

posting it on Youporn.com

If there isn't already a Youporn.com (and I'm not about to try and find out from the office), that's a billion-dollar idea just lying there for the taking.

Old Bull Lee | August 1, 2008, 12:37pm | #

There is.

andy | August 1, 2008, 12:37pm | #

1) with a policy like this, i see that there's an incentive and greater likelihood that laptops will be built to self-destruct if people believe their information will be stolen and potentially duped by dhs.

2) this predicament (created by dhs) could result in an actual deadly/harmful, explosive/corrosive laptop that disintegrates/dissolves/explodes when it's stolen, potentially harming the dhs agents who confiscate them. dhs will then have the crisis they need to retroactively justify these searches.

3) profit!

Dagny T. | August 1, 2008, 12:38pm | #

Why worry? The gubmint has an impeccable track record when it comes to protecting confidential information. Just ask Ms. Plame.

P Brooks | August 1, 2008, 12:39pm | #

From suspicionless search to suspicionless confiscation. Golly- you don't suppose they'd be sharing your Quicken files with the IRS?

No expectation of freedom.

COCKSUCKERS

J sub D | August 1, 2008, 12:39pm | #

If we had been doing this prior to 9/11 the government would have stopped those terrorist islamofascist jihadists in their tracks.

No?

This is just governmant wanting more information about anything that they can justify, reasonable or otherwise. Knowledge is power. and if the government is about anything, it's power.

Guy Montag | August 1, 2008, 12:41pm | #

You mean I have been building my terabyte-of-pr0n collection just so the feds can skip the finding steps and pass it around?

short, fat bastard | August 1, 2008, 12:43pm | #

As I sat a watched TV on the morning of the 11th all those years ago, I thought to myself: I watched the Berlin Wall come down after the US crushed the Soviet Union. And now I'm going watch the US become the Soviet Union.

Do Cvidaniye to the Bill of Rights.

nothinghead | August 1, 2008, 12:45pm | #

On the same day, we see this story about how the US can confiscate travelers' electronics and spy on their personal documents and communications, and this story warning US travelers that the Chinese can spy on personal documents and communications on their electronic devices. Money quote from Sen. Sam Brownbeck, "A lot of places in the world, including China, don't have the same view of personal space and privacy that we do in the United States."

It seems to me that in this case, China's techniques are not all that different from those of the United States.

P Brooks | August 1, 2008, 12:45pm | #

2) this predicament (created by dhs) could result in an actual deadly/harmful, explosive/corrosive laptop that disintegrates/dissolves/explodes when it's stolen, potentially harming the dhs agents who confiscate them. dhs will then have the crisis they need to retroactively justify these searches.

Anthrax.

*****

supported by the 9th Circuit Court of Appeal

I guess I missed the part where it was decreed that federal judges were forbidden to have any knowledge, or understanding, of the Constitution. I'm not, like, a Constitutional Law scholar, but doesn't the Fourth Amendment expressly prohibit this stuff?

Josiah | August 1, 2008, 12:52pm | #

Nah man, you're going overseas.

shecky | August 1, 2008, 12:53pm | #

Fuck.

Tom | August 1, 2008, 12:54pm | #

Agree with the overall sentiment here, but just a note:

And seeing as agencies can share the information they confiscate, what's to keep the DHS from forwarding evidence of your illegally downloaded music library to the FBI?

With a couple of exceptions (unrelated to music downloading), copyright infringement is a civil matter between private parties, not a criminal one. For all the problems with laptop confiscation, having your Limewire library forwarded to the FBI isn't one of them. The FBI couldn't care less about how you acquired your music files.

(That's also the reason that the phrase "ILLEGALLY downloaded music" is inaccurate, in and of itself. "Unauthorized" is generally better.)

P Brooks | August 1, 2008, 12:57pm | #

Kip Hawley bestiality movies.

I sense a market opportunity.

Brandybuck | August 1, 2008, 12:58pm | #

doesn't the Fourth Amendment expressly prohibit this stuff?

Of course it does! The answer was so obvious I'm surprised you had to ask the question.

There is this segment of the libertarian movement called "constitutionalists". They don't base their ideology on the non-aggression principle, or Atlas Shrugged, or tolerant cosmopolitanism, but simply a desire for government to follow its own rules. The constitutionalists might not be Ruwart-Pure libertarians, but they are radical anarchists in comparison to the typical federal judge.

JW | August 1, 2008, 12:59pm | #

Sa-a-a-a-y-y, that's a real nice iPod you've got there.

Confiscated. Sorry. National security.

P Brooks | August 1, 2008, 1:02pm | #

"Two Elephants, One Kip"

Conservationist | August 1, 2008, 1:02pm | #

Since the Clinton years, the American government has felt free to wage war upon its people. Remember the Waco inferno.

tekende | August 1, 2008, 1:04pm | #

The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and masturbate over porn stored on your hard drive." This may take place "absent individualized fetishes."

mediageek | August 1, 2008, 1:08pm | #

Presumably having your Windows-based laptop set up to be password protected wouldn't stop them from being able to pull data off of the machine, right?

Jon | August 1, 2008, 1:10pm | #

Since they can share this data with other federal agencies, does this mean that I can get busted for having illegally downloaded old Chuck Norris films and Whitesnake concerts?

JW | August 1, 2008, 1:15pm | #

does this mean that I can get busted for having illegally downloaded old Chuck Norris films and Whitesnake concerts?

No, but you should be punished for your poor choices nonetheless.

joe | August 1, 2008, 1:16pm | #

Buy stock in companies that sell teleconferencing equipment. Between this and fuel prices, who wants to fly on business?

Al Goldstein | August 1, 2008, 1:18pm | #

Are you sure that foreign porn model you surfed 6 months ago wasn't < 17y 365d old when the picture/clip was made?
(the legally filed age statements are no defense)

Then you have nothing to fear.

Bingo | August 1, 2008, 1:24pm | #

Welp, time to set my desktop background to goatse.

Episiarch | August 1, 2008, 1:25pm | #

Sa-a-a-a-y-y, that's a real nice iPod you've got there.

Confiscated. Sorry. National security.

That was the first thing that popped into my mind. The TSA employees are already knuckle-dragging cretins; this policy is going to be abused so fast heads will spin. It's one thing when they take your 50-cent lighter or 2-dollar nail clippers. But your $3000 MacBook Air? Your Lenovo tablet?

I cannot believe DHS is this stupid.

Oh wait, yes I can.

J sub D | August 1, 2008, 1:28pm | #

Money quote from Sen. Sam Brownbeck, "A lot of places in the world, including China, don't have the same view of personal space and privacy that we do in the United States."

FTW.

Zeb | August 1, 2008, 1:32pm | #

I believe this is something customs does, not the TSA security people. Baggage screeners will not be stealing your Ipod because of this. This is still terrible and in no way is it not thought policing.

Mr. Fair 'n' Square | August 1, 2008, 1:40pm | #

The TSA employees are already knuckle-dragging cretins

Come on. A statement like that makes you the cretin.

Warty | August 1, 2008, 1:41pm | #

Bruce Schneier talked about this in last month's Crypto-Gram. Do what he says:

Crossing Borders with Laptops and PDAs



Last month a US court ruled that border agents can search your laptop, or any other electronic device, when you're entering the country. They can take your computer and download its entire contents, or keep it for several days. Customs and Border Patrol has not published any rules regarding this practice, and I and others have written a letter to Congress urging it to investigate and regulate this practice.

But the U.S. is not alone. British customs agents search laptops for pornography. And there are reports on the internet of this sort of thing happening at other borders, too. You might not like it, but it's a fact. So how do you protect yourself?

Encrypting your entire hard drive, something you should certainly do for security in case your computer is lost or stolen, won't work here. The border agent is likely to start this whole process with a "please type in your password". Of course you can refuse, but the agent can search you further, detain you longer, refuse you entry into the country and otherwise ruin your day.

You're going to have to hide your data. Set a portion of your hard drive to be encrypted with a different key - even if you also encrypt your entire hard drive - and keep your sensitive data there. Lots of programs allow you to do this. I use PGP Disk . TrueCrypt is also good, and free.

While customs agents might poke around on your laptop, they're unlikely to find the encrypted partition. (You can make the icon invisible, for some added protection.) And if they download the contents of your hard drive to examine later, you won't care.

Be sure to choose a strong encryption password. Details are too complicated for a quick tip, but basically anything easy to remember is easy to guess. Unfortunately, this isn't a perfect solution. Your computer might have left a copy of the password on the disk somewhere, and (as I also describe at the above link) smart forensic software will find it.

So your best defense is to clean up your laptop. A customs agent can't read what you don't have. You don't need five years' worth of e-mail and client data. You don't need your old love letters and those photos (you know the ones I'm talking about). Delete everything you don't absolutely need. And use a secure file erasure program to do it. While you're at it, delete your browser's cookies, cache and browsing history. It's nobody's business what websites you've visited. And turn your computer off -- don't just put it to sleep -- before you go through customs; that deletes other things. Think of all this as the last thing to do before you stow your electronic devices for landing. Some companies now give their employees forensically clean laptops for travel, and have them download any sensitive data over a virtual private network once they've entered the country. They send any work back the same way, and delete everything again before crossing the border to go home. This is a good idea if you can do it.

If you can't, consider putting your sensitive data on a USB drive or even a camera memory card: even 16GB cards are reasonably priced these days. Encrypt it, of course, because it's easy to lose something that small. Slip it in your pocket, and it's likely to remain unnoticed even if the customs agent pokes through your laptop. If someone does discover it, you can try saying: "I don't know what's on there. My boss told me to give it to the head of the New York office." If you've chosen a strong encryption password, you won't care if he confiscates it.

Lastly, don't forget your phone and PDA. Customs agents can search those too: e-mails, your phone book, your calendar. Unfortunately, there's nothing you can do here except delete things.

I know this all sounds like work, and that it's easier to just ignore everything here and hope you don't get searched. Today, the odds are in your favor. But new forensic tools are making automatic searches easier and easier, and the recent US court ruling is likely to embolden other countries. It's better to be safe than sorry.

Addendum: Many people have pointed out to me that I advise people to lie to a government agent. That is, of course, illegal in the U.S. and probably most other countries -- and probably not the best advice for me to be on record as giving. So be sure you clear your story first with both your boss and the New York office.

Occam's toothbrush | August 1, 2008, 1:47pm | #

DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

This isn't a 4th amendment violation, as it takes place when entering the US, where almost any search is considered reasonable by the courts.

Also, Mr. Riggs, not everything the govt does that you don't like is "thought policing". Let's not overreact.

Cosmotarian Overlord | August 1, 2008, 1:49pm | #

Zeb is right...relax guys this is only for those people who are traveling internationally...the rest of you have nothing to fear...let this one slide. They'd never try to broaden this government program...your all conspiracy nuts.

ChicagoTom | August 1, 2008, 1:51pm | #

With a couple of exceptions (unrelated to music downloading), copyright infringement is a civil matter between private parties, not a criminal one. For all the problems with laptop confiscation, having your Limewire library forwarded to the FBI isn't one of them. The FBI couldn't care less about how you acquired your music files.

Only for the moment and that might all change.

Check out this link here

Last week, members of the Senate Judiciary Committee introduced S. 3325, the "Enforcement of Intellectual Property Rights Act of 2008," a bill that proposes a number of alarming changes to copyright law. The bill is the Senate's gift to big content owners, creating new and powerful tools -- many of which will be paid for by your tax dollars -- for the entertainment industry to go after infringers.
...
One of the bill's most disturbing changes would give the Attorney General new powers to sue individuals on behalf of rightsholders like the MPAA and the RIAA. Bill proponents claim that these new powers, which would allow the AG to bring "milder" civil as well as criminal actions, are necessary because some offenses don’t rise to the level of criminal conduct.

Nigel Watt | August 1, 2008, 1:53pm | #

Occam, the rights enumerated in the Constitution do not originate in the Constitution; ie, they are natural human rights which the federal government is specifically forbidden from violating. In other words, this is a violation of the natural right enshrined in the 4th Amendment, whether or not it violates the case law regarding that amendment.

Cosmotarian Overlord | August 1, 2008, 1:53pm | #

remember, anyone who questions the motive of a government program is helping to spread a system of thought that encourages a radical belief system which could help create more homegrown terorism so shut up.

Occam's toothbrush | August 1, 2008, 1:53pm | #

Addendum: Many people have pointed out to me that I advise people to lie to a government agent. That is, of course, illegal in the U.S. and probably most other countries -- and probably not the best advice for me to be on record as giving.

No shit.

So be sure you clear your story first with both your boss and the New York office.

This is even better. I'm sure your boss will be happy to help you hide any illegal material you feel like carrying back and forth across the border -- and take the blame for it if Customs decides to decrypt it!

My advice? Leave anything you don't want searched at home when you travel. It ain't hard. You can probably go without masturbating for a couple of weeks while you're on that business trip.

ChicagoTom | August 1, 2008, 1:55pm | #

You can probably go without masturbating for a couple of weeks while you're on that business trip.

Speak for yourself

joe | August 1, 2008, 1:57pm | #

I used to temp at FedEx.

Customs agents would open up packages all the time. It didnt' look targetted, but like a screening procedure. Once or twice a week, they'd show up and yank X number of packages off the belt. No warrants involved, as far as I can tell.

ChicagoTom | August 1, 2008, 1:57pm | #

Also from the proposed Senate bill liked to above:

The bill also seeks to create an Intellectual Property Enforcement Coordinator position in the Executive Office, with an advisory committee consisting of members from various government departments and agencies.
...
There's more: another provision creates new categories of infringement at the border, suggesting that individuals need the permission of copyright holders to bring copies of music or movies with them overseas or even through the United States. If the bill is passed, something as simple as taking your iPod to Mexico could be considered an infringement of the copyright owners’ distribution right. The bill also proposes to lengthen the list of items that can be impounded as part of a civil copyright infringement suit, while broadening the list of articles that can be seized and destroyed by the government.

Occam's toothbrush | August 1, 2008, 1:57pm | #

Nigel,

Some are, some aren't. You don't seriously think that the right to a jury trial, for instance, flows from our creation by God (or human nature if you prefer), do you?

In any case, the courts have ruled that a search that is unreasonable in some situations can be reasonable in others.

Paul | August 1, 2008, 1:57pm | #

How's that expanding libertarianism workin' out for everyone? All those battles we're winning?

Guy Montag | August 1, 2008, 2:03pm | #

You guys are downright un-American. I gladly volunteer for an anal cavity search every time I fly. Some of us love our country...

Occam's toothbrush | August 1, 2008, 2:04pm | #

joe,

You knew this, and you didn't resist? You're as much of a civil rights sellout as Obama. (;

Mr. Happy Flight Attendant | August 1, 2008, 2:06pm | #

That's not Guy Montag (unfortunately).

Warty | August 1, 2008, 2:06pm | #

and take the blame for it if Customs decides to decrypt it!

It's important to note that it's impossible, practically speaking, to decrypt data that's been encrypted with a reasonably-sized key. If Customs "decides" to decrypt it, you're safe for a few years, at least, while they try to brute-force it.

I used to piss my roommates off a lot when they were watching 24 by pointing this out when CTU would decrypt terrorist messages in 20 minutes. God, how I hate 24. Completely worthless other than Hot-Daughter.

kinnath | August 1, 2008, 2:08pm | #

My advice? Leave anything you don't want searched at home when you travel.

jon | August 1, 2008, 2:08pm | #

Tom,
"With a couple of exceptions (unrelated to music downloading), copyright infringement is a civil matter between private parties, not a criminal one."

Are you sure about this? Copyright is PRIMARILY a civil protection, but the copyright statute, 17 USC 506 reads:
(a) Criminal infringement.--

(1) In general.--Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--
* * *
(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or . . .

I think you can get nailed with a criminal violation if have have done enough copying.

Guy Montag | August 1, 2008, 2:09pm | #

I regret I have only one anal cavity to give for my country.

kinnath | August 1, 2008, 2:10pm | #

Second attempt -- the squirrels are running amok today.

My advice? Leave anything you don't want searched at home when you travel . .

It is apparent that Mr. Toothbrush is not a knowledge worker who regularly crosses international borders as part of his job.

joe | August 1, 2008, 2:13pm | #

Guy Montag | August 1, 2008, 2:09pm | #

I regret I have only one anal cavity...

The rest of us regret that it's located at the top of your neck.

Talldave | August 1, 2008, 2:15pm | #

Right on Guy. Liberals get all hot and bothered over "violations of rights" which are more like the things me and my fraterity brothers did all the time, like anal cavity searches. Some of us are willing to put up with such minor things to fight the growing threat of Islamo-fascism.

Tom | August 1, 2008, 2:21pm | #

Jon:

For some reason you snipped the (A) clause in that statute, which explicitly states: "for purposes of commercial advantage or private financial gain."

That's the exception I was alluding to in my initial post, and it's not relevant to Joe Blow's personal MP3 collection, and thus nor the FBI.

kinnath | August 1, 2008, 2:25pm | #

It is inevitable that some low-level shmuck in Customs will be indicted on charges related to corporate espionage. It is only a matter of time.

bill | August 1, 2008, 2:25pm | #

What gets me is the people at Customs who find nothing wrong with all of this and carry these policies out. I guess we know who the new Brownshirts are.

First Little Pig | August 1, 2008, 2:33pm | #

Second attempt:

Scenario: You are on some list (terror, unamerican activities, subscriber to Reason, blogger, host of on-line poker site ...) and the govt has no real charged against you but wants to fuck with you. While you are traveling they confiscate your laptop and plant incriminating evidence (kiddie porn, emails to Osama, whatever) and detain you.

You then enter a Kafka-esque world of detentions, interrogations, imprisonment all on false charges.

You think this is a fantasy? Just you wait.

Occam's toothbrush | August 1, 2008, 2:34pm | #

Warty,

What happens when Customs tracks down your boss and asks for the encryption password?

kinnath,

You are a keen judge of profession. My advice, as it were, is for those who have illegal material they wish not to be found, since Reason frequenters seem more concerned about the possibility that these regulations might catch the guilty than they are about the possibility that it might catch the innocent.

Tonio | August 1, 2008, 2:35pm | #

I'll concede that I prefer getting the wand from a disgruntled TSA employee to Katyusha rocket fire from Islamic militants[...]

That's some tasty prose, Mike.

Also, love the illustration.

Interesting to note that the 9th Circuit is generally the most liberal (read "overturned") of the federal circuit courts.

kinnath | August 1, 2008, 2:38pm | #

is for those who have illegal material they wish not to be found,

You can download harder core stuff from US companies than is typically found in the red light district of Amsterdam. It's not illegal here or there, but the dickhead at Customs won't care either way.

Occam's toothbrush | August 1, 2008, 2:39pm | #

First little pig,

Right. That's so much more devastating than planting a bag of MJ in your luggage, which they can do already.

Really, people, the sky isn't falling (any more than it already was, at least).

Occam's toothbrush | August 1, 2008, 2:41pm | #

kinnath,

If it's not illegal to bring into the US, how is Customs going to be able to harm you?

R C Dean | August 1, 2008, 2:44pm | #

Baggage screeners will not be stealing your Ipod because of this.

They've already proven they're willing to take your Ipod just . . . because . . . they . . . can.

Customs agents would open up packages all the time.

Yeah. The fuckers stole the Cuban cigars I had ordered by my wedding reception. Bastards.

kinnath | August 1, 2008, 2:51pm | #

If it's not illegal to bring into the US, how is Customs going to be able to harm you?

Two failure conditions:

a) the agent searching your laptop is an under-paid, under-trained, over-worked person that wants to do the right thing, but does the wrong thing anyway . . . .

b) the agent searching your laptop is a dickhead that thinks your behavior is wrong in his/her opinion regardless of the technical details of the law . . . .

The consequences are basically the same in either a) or b):

1) Confiscation of property until such time as the customs office decides to give it back to you (which could be never)

2) Additional, truly-invasive search in the privacy of a little locked room by people that have decided you are a criminal

3) Delays resulting in missed connections and all the subsequent hassles that ensue

4) All of the above

The people that work the lines of TSA, Immigration, Customs, etc are not the best a brightest that society has to offer.

Eye Tee Guy | August 1, 2008, 2:52pm | #

i see that there's an incentive and greater likelihood that laptops will be built to self-destruct

Maybe, but this would probably take the form of data wiping, not "Mission Impossible" physical destruction. Otherwise laptops would be classed as explosive/flammable devices and wouldn't fly.

Presumably having your Windows-based laptop set up to be password protected wouldn't stop them from being able to pull data off of the machine, right?

No, passwords won't keep them at bay.

Encryption might, but then they'd ask why you were carrying encrypted data. Steganography (see Wikipedia) is the way to go.

brec | August 1, 2008, 2:54pm | #

nothinghead provided this link to a story and wrote:

Money quote from Sen. Sam Brownbeck, "A lot of places in the world, including China, don't have the same view of personal space and privacy that we do in the United States."

The quote is actually of Phil Dunkelberger, chief executive of security software firm PGP Corp.

Gabe Harris | August 1, 2008, 2:56pm | #

TSA took my antique miniature croowbar with hammer head...it was all one piece of steel. I forgot it was in my bag and now it is gone. kinda sucked

P Brooks | August 1, 2008, 2:56pm | #

the sky isn't falling

And if you're not guilty, you have nothing to worry about.

Remember- they're from the government, and they're here to help us.

SugarFree | August 1, 2008, 3:06pm | #

Thanks for making air travel even shittier, Congress.

Fuck sakes.

Jon | August 1, 2008, 3:10pm | #

Tom,

I left subsection (a) out because my underastanding is that it is a disjunction and not required for an offense (i.e., you break law, X if you do a,b, or c, rather than a,b, and c). Is this not correct?

(1) In general.--Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--


(A) for purposes of commercial advantage or private financial gain;


(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; *or*


(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

kinnath | August 1, 2008, 3:14pm | #

With that, the House Transportation and Infrastructure Committee approved by voice vote a bill that would make the current Federal Aviation Administration and Federal Communication Commission ban on cell phone use during flight permanent.

I'm not a violent man by nature, but there is a really good chance I would attempt to gut someone with a plastic spoon if he/she blathered on a cell phone in the seat next to me.

No Name | August 1, 2008, 3:15pm | #

Best defense - load a virus onto your laptop / thumb drive etc that will fry the computer it's downloaded to...... Basically, booby trap your electronics.

kinnath | August 1, 2008, 3:19pm | #

Basically, booby trap your electronics.

Criminal tampering with national computing systems. Good solid advice.

Warty | August 1, 2008, 3:20pm | #

Mr Toothbrush:

What happens when Customs tracks down your boss and asks for the encryption password?

You don't let him know it, obviously. If you're really paranoid, you don't even let yourself know it. For example, you keep your key within an image in the SD card in your camera, or the key is found by subtracting two nearly-identical images, then decrypting that using some other key that you memorized, or something. You can always hide data if you're clever enough.

Tom | August 1, 2008, 3:23pm | #

Jon,

The Department of Justice puts it like this:

There are four essential elements to a charge of criminal copyright infringement. In order to sustain a conviction under section 506(a), the government must demonstrate: (1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain.

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01847.htm

Warty | August 1, 2008, 3:24pm | #

You can always hide data if you're clever enough.

At least until quantum computers come online. Then we need to stop using public-key cryptography and use symmetric ciphers.

SugarFree | August 1, 2008, 3:31pm | #

kinnath,

The problem is, if they swipe a credit card and pay $3 a minute they can yammer to their limit's content on the seatback phone. It's not a law about talking on a phone on a plane, it's a law about keeping you from using the phone you already pay for on a plane.

But yes, yammering people are an annoyance. Congress can get back to me on that after they give serious discussion of banning babies on flights. (My wife has an exquisite rant about how women sitting next to her get huffy when she won't hold their baby while they go to the bathroom.)

kinnath | August 1, 2008, 3:38pm | #

The problem is, if they swipe a credit card and pay $3 a minute they can yammer to their limit's content on the seatback phone. It's not a law about talking on a phone on a plane, it's a law about keeping you from using the phone you already pay for on a plane.

I haven't been on a plane in about 18 months, but last I knew domestic air-to-ground phone services was dead. International satellite phone service is closer to 10 bucks an hour.

Usage is so low, it's a money loser for the airlines that install it. And all international airlines that have it disable it during "sleep" hours.

Cellular connectivity between the aircraft and the ground is very doable right now. Prices will be modest. Usage will be high. Violence will ensue.

kinnaath | August 1, 2008, 3:43pm | #

closer to 10 bucks an hour minute.

Preview, my friend, preview.

Tom | August 1, 2008, 3:45pm | #

closer to 10 bucks an a hour minute.

Preview, my friend. Preview.

SugarFree | August 1, 2008, 3:50pm | #

Good points, but then I really don't see the difference between using the plane's phone and your phone. I don't see that the bill wants to ban the expensive plane phones, so what's the difference between theirs and yours? Most of it's probably quiet texting for the under-20s anyway.

(With the continued caveat that people on cell phones are 99% annoying fucks.)

Also, don't make me turn-off my iPod on take-off and landing. That interference line is utter horseshit. My iPod takes care of any and all cabin noise anyway.

kinnath | August 1, 2008, 3:51pm | #

And I even previewed my comment . .

At least it was merely a grammar error this time ;-)

prolefeed | August 1, 2008, 3:55pm | #

If there isn't already a Youporn.com (and I'm not about to try and find out from the office), that's a billion-dollar idea just lying there for the taking.

Not really a billion-dollar idea, since fierce competition between free porn sites must be driving the profitability down to rock bottom. There's Youjizz.com, Porntube.com, Pornotube.com, and a bazillion other combos playing off of "You" or "Tube".

FWIW, Xvideos.com is still the best.

prolefeed | August 1, 2008, 4:01pm | #

Really, people, the sky isn't falling (any more than it already was, at least).

So unless something is incredibly fucked up, and not just merely much worse than it could be, shuffle along like a good like sheeple and don't complain?

Recent rode the Hawaii Superferry. Private security. Huge shock -- the security folks were cheerful, pleasant, and only performed checks that were clearly related to actual security problems.

As opposed to the SOBs in the TSA who make you take your fucking shoes off, throw away bottles of water clearly labeled "water", and subject you to the full terrorist screening if your driver's license has recently expired.

jtuf | August 1, 2008, 4:02pm | #

The War on Drugs set the precedence for this stuff. Unfortunately, politicians are more interested in banning tobacco than protecting the constitution.

No Name | August 1, 2008, 4:03pm | #

Hey Kinnath

I never said to tamper with THEIR computing sysems, only your leave some 'gifts' on your own machine.

So, it's a crime to keep computing virus' for 'research' purposes on my own machine?

More along the lines of leaving a bagged, maggot infested dead skunk in the trunk of the car - search away copper, be sure to check in that bag, but watch out....might be a doozy....


Basically, booby trap your electronics.

Criminal tampering with national computing systems. Good solid advice.

kinnath | August 1, 2008, 4:11pm | #

Good points, but then I really don't see the difference between using the plane's phone and your phone. I don't see that the bill wants to ban the expensive plane phones, so what's the difference between theirs and yours? Most of it's probably quiet texting for the under-20s anyway.

The pricing of inflight phone service currently supresses dickheads from being dickhead in flight. This does not prevent dickheads from being dickheads during boarding procedures. I assume that the behavior of dickhead during boarding procedures today will be a good indicator of what life will be like when cell phones are allowed during flight.

By the way, none of that gives Congress the right to interfere in this matter.

Also, don't make me turn-off my iPod on take-off and landing. That interference line is utter horseshit. My iPod takes care of any and all cabin noise anyway.

This bullshit is the result of fear by airlines that any event that could be traced to the use of portable electrinc devices will result in devastating lawsuits.

The FAA leaves it up to each airline to ensure that flight operations are not jeopardized by said portable electronic devices. The default solution is to turn'em off below 10,000 ft.

kinnath | August 1, 2008, 4:19pm | #

Best defense - load a virus onto your laptop / thumb drive etc that will fry the computer it's downloaded to ...... Basically, booby trap your electronics.

Remember the full post?

I never said to tamper with THEIR computing sysems, only your leave some 'gifts' on your own machine.

Yes you did.

TrickyVic | August 1, 2008, 4:25pm | #

"""This is just governmant wanting more information about anything that they can justify, reasonable or otherwise. Knowledge is power. and if the government is about anything, it's power."""

Yes indeed. The governments ability to know about us has grown, where our ability to know about the government is less.

"""I never said to tamper with THEIR computing sysems, only your leave some 'gifts' on your own machine. """

Like making a really nasty porn pic as your desktop background. And, instead of the windows sound when Windows boots-up it plays "you are a fucking cocksucker, you vile piece of shit, you will never amount to anything. Work hard for that two dollars an hour bitch!"

Eye Tee Guy | August 1, 2008, 4:25pm | #

Best defense - load a virus onto your laptop / thumb drive etc that will fry the computer it's downloaded to...... Basically, booby trap your electronics.

That sounds good in theory, but wouldn't work in practice. The feds won't booting up from the image of your HD, or running any programs from it; they'll just be scanning your data. Also, you assume that the computer which is doing the scanning is the same hardware platform and OS as your laptop.

Criminal tampering with national computing systems. Good solid advice.

IANAL, but I don't think that having a virus on one's own private laptop could even remotely be construed as tampering with a govt computer. Not that it matters, in light of the technical issues above, but you're grasping.

TrickyVic | August 1, 2008, 4:29pm | #

A better solution for the buisness travelers of the world. Don't do buisness in the US. Have your US partners meet you in Canada or teleconference.

kinnath | August 1, 2008, 4:30pm | #

IANAL, but I don't think that having a virus on one's own private laptop could even remotely be construed as tampering with a govt computer.

Being technically impossible does not prevent the government from making conspiracy charges.

But like I said, good solid advice.

Eye Tee Guy | August 1, 2008, 4:42pm | #

Being technically impossible does not prevent the government from making conspiracy charges.

Kinnath: No, but I based my rebuttal to you not on the technical grounds, but on my limited knowledge of law. The US Atty would have to prove that you knew there was a virus on your PC (not a crime in itself, and a very common circumstance), that you knew your computer would be seized by the feds and that you deliberately planted the virus in an attempt to damage a government computer.

Jon | August 1, 2008, 4:49pm | #

Haha. Sorry Tom. Now that I re-read the statute, I feel like an idiot. I thought the "or" applied across (A)-(C) and failed to notice (A) was a necessary element. God, I hate reading statutes. Good to know, nonetheless.

Invisible Finger | August 1, 2008, 4:55pm | #

You can probably go without masturbating for a couple of weeks while you're on that business trip.

Outside of Muslim countries, porn is harder to get in the US than anywhere else.

Paul | August 1, 2008, 5:06pm | #

You think this is a fantasy? Just you wait.

It is a fantasy. I believe that there are Homeland Security agents fantasizing about this right now...

Kwix | August 1, 2008, 6:11pm | #

mediageek | August 1, 2008, 1:08pm | #
Presumably having your Windows-based laptop set up to be password protected wouldn't stop them from being able to pull data off of the machine, right?

Just pop a LiveCD of your favorite NTFS3g enabled Linux distro and see how secure that password is. Linux doesn't recognize Windows file permissions and vice versa.

In other words, just setting an OS password does not prevent anyone from actually, and rather painlessly, obtaining said data.

Though, I do wonder how this jives with the precedent of a locked vehicle trunk or a locked room in a house being unsearchable without consent or a warrant.

Nick | August 1, 2008, 6:38pm | #

I would suggest that the right being violated here is not the "unenumerated right to privacy". This is an unreasonable search, which means that it violates the enumerated 4th amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

TrickyVic | August 1, 2008, 7:36pm | #

For some reason I doubt our government would consider that type of search at the border unreasonable. It follows the concept that anything is reasonable when your looking for terrorists, especially when it's a location that has reasonable expectation of a terrorist encounter.

Pablo Escobar | August 1, 2008, 8:12pm | #

The federal government shouldn't be spying on us, we should be spying on them. They work for us. How about putting wiretaps in politician's offices so we can see exactly what goes on between them and the lobbyists? How about bugging the CIA headquarters to see what illegal operations they're planning next? Politicians and bureaucrats are a far greater threat to our national security than Islamic fundamentalists. The government has the power to start World War III and a nuclear war. The terrorists can only blow up a buildings and kill a few thousand people.

James Anderson Merritt | August 1, 2008, 9:35pm | #

# Occam's toothbrush | August 1, 2008, 1:47pm | #

## DHS officials said the newly disclosed
## policies -- which apply to anyone
## entering the country, including U.S.
## citizens -- are reasonable and necessary
## to prevent terrorism. Officials said such
## procedures have long been in place but were
## disclosed last month because of public
## interest in the matter.

# This isn't a 4th amendment violation,
# as it takes place when entering the US,
# where almost any search is considered
# reasonable by the courts.

And where, apparently, English is a foreign tongue. Arbitrary search for purposes of "customs" -- basically declaring "reasonable suspicion" on the basis of someone simply seeking to cross a border -- is indeed against the 4th Amendment, whatever the courts have said, say now, or will say. The flip side, however, is that the 4th says that its protections apply to "the people," which is pretty universally held for legal purposes to mean "We the People" of the United States -- US Citizens, in other words.

If you are a US Citizen, returning home from abroad, and among your "papers and effects" is a laptop or other electronic information storage device, the Constitution assures that your right to the security of yourself and these things against unreasonable search AND SEIZURE shall not be violated by the government that the same Constitution authorizes. The test of reasonability was originally convincing a judge to grant a warrant, based on probable cause. Now, exigent circumstances (general threat of terror infiltrations at the border, perhaps?) excuse officials from the prior-warrant requirement if there is also probable cause. But absent at least probable cause, arbitrary searches and seizures are unconstitutional, and the contorted rationales that have been used to allow such illegal searches in the name of anti-gang, anti-drug, and anti-terrorism efforts also happen to be anti-American.

"Pablo Escobar" is right. On paper, at least, the Feds work for us. The people need to stand up and demand respect, for themselves and for the Constitution.

Last election, my call to "fire the incumbents" was once-again poo-pooed, this time by Democrats who said, "just elect our guys, and we'll make it all better." So two years later, has that happened yet? I don't think so. Overwhelmingly, the Demos in Congress showed themselves to be loyal members of the two-faced Power Party, different in spicing perhaps, but not in the essential meat and bone, from their GOP colleagues. Let's fire as many of them as possible, favoring instead those who seem to understand the Constitution and pledge to follow it, and then see how clean a slate we can have, going forward. If not now, when? How many times must we be fooled before "won't get fooled again" gets through to people? The only thing pols understand is losing, or the credible threat of same. So let's send a lot of incumbent losers home in November.

TrickyVic | August 4, 2008, 3:53pm | #

""""Pablo Escobar" is right. On paper, at least, the Feds work for us."""

Yeah, be sure to remind the customs agent of that the next time. ;-)

TrickyVic | August 4, 2008, 3:54pm | #

"""Politicians and bureaucrats are a far greater threat to our national security than Islamic fundamentalists."""

The political parties agree, at least when they are talking about the other guy.