The government is preventing a native-born citizen of this country from returning home to the USA from overseas.

The Practical Nomad blog: USA denies its citizens their right of return

Man this is infuriating... Dude goes to the bathroom on an airplane and his ipod drops out of his pocket into the toilet. What would normally be an annoying situation turns into yet another police state farce, now seemingly a daily occurance, in which an airplane is diverted to the nearest airport and the passengers and plane are dissected with a fine tooth comb by a bunch of authoritarian assholes who think that they write the law.

Included in this adventure is the now ubiquitous laptop examination for evidence of thought crime, which occured AFTER they had already determined that there was no threat to the aircraft!!

What the hell does the below have to do with preventing terrorist attacks!?

NOT A DAMN THING!

He then asked me to turn on my laptop. I did, and he began using it. I saw him open Spotlight and begin searching...

I waited in total silence for about 10 minutes as he kept searching and searching, until I finally asked him, "What are you looking for?"

"Contraband," he said without looking up at me.
"Such as?"
"Child pornography, hate propaganda."
"Child porn I can understand, that's illegal. But hate propaganda is protected speech."
Now he looked up. "What country do you think you're in?"
"Oh, it's illegal in Canada?"
"I honestly don't know. But that doesn't matter. I get to decide what goes in this country. Do you have a problem with that?"
I paused for a long time while I thought about what I should say to this. "Yes."
"Yes, you do have a problem?"
"Yes, I do. If it's illegal in Canada I'll understand, but saying 'I don't want it in my country' isn't good enough when you're a government official."

Now he was pissed. "Don't fool around with me. I'm sure you want this to end as much as I do. So I will ask you questions, and you will answer. Do you understand?"

Face to Face with the International Authoritarian Police State

"What we are looking for are patterns of behavior that indicate something all terrorists have: the fear of being caught," he says.

They look for... subtle signs like vocal timbre, gestures and tiny facial movements that indicate someone is trying to disguise an emotion.

"All you know is there's an emotion being concealed. You have to find out why the emotion is occurring..."

The explanations for hiding emotions often are innocent: A traveler might be stressed out from work, worried about missing a flight or sad because a relative just died.

SPOT teams have identified about 100 people who were trying to smuggle drugs, use fake IDs and commit other crimes, but not terrorist acts.

Don't hide your emotions from the TSA. Hide nothing from the goverment. Only criminals have something to hide. We're watching.

WSJ.com - Which Travelers Have 'Hostile Intent'? Biometric Device May Have the Answer

"What helped the British in this case is the ability to be nimble, to be fast, to be flexible, to operate based on fast-moving information," he said. "We have to make sure our legal system allows us to do that. It's not like the 20th century, where you had time to get warrants."

Michael Chertoff, secretary of the Department of Homeland Security

Warrants are so 20th Century. Thats the meme of the year. Remember, the Constitution talks about Warrants, but it doesn't say you always have to have one. It just says that you can't perform an unreasonable search. If the Secretary of the Department of Homeland Security thinks its reasonable, then obviously it must be. In the future, Warrants will only be required when you're searching the offices of a corporation or a public official. I'm not kidding. Mark my words.

The strategy here is to win the 2006 elections on an anti civil liberties platform.

We have to get away from this concept that we have to apply civil-liberties protections to terrorists," Peter King (R., N.Y.), the chairman of the House Homeland Security Committee

What is a terrorist, Mr King? Who determines who is or is not a terrorist so that we know when to apply civil liberties and when not to apply them? What is a trial, Mr. King? What does a trial determine? How can you determine guilt without a trial? If you don't need a trial to determine guilt, then why have them? What is their purpose? Has the federal government ever prosecuted an innocent person? How many, exactly? Has the federal government ever spied on anyone for an inappropriate purpose? Has the federal government ever detained someone for an inappropriate purpose?

Meme of the Year: Warrants are so 20th Century

The appeals court said that expert testimony established that terrorists seek predictable and vulnerable targets and that the subway search program "generates uncertainty that frustrates that goal, which, in turn, deters an attack."

If you see they are searching today, you can take an alternate means of transportation, or walk to the next stop. Terrorists are unlikely to do this, because it screws up their operational plan. Frankly, if they can search everyone getting on an airplane, they can search people getting on trains. They can search people going into schools, going into malls, going into stores. They can search people everywhere. They can search them all the time. As long as its possible that a bomb might go off there, the searches will be considered reasonable.

Searches of Bags in Subway Upheld

The traditional approach in the past has been that the U.S. will help a foreign country investigate foreign offenses even if the same conduct is not a crime in the U.S. so long as cooperation does not raise any constitutional difficulties (such as 1st Amendment issues). The cybercrime treaty maintains this traditional approach.

I've read a lot of dithering about this cybercrime treaty. Its reads very similar to US law, and some of the more controversial edges are presented as optional provisions. Furthermore, this treaty doesn't supercede the Constitution. We can't implement it or comply with it in violation of our own Constitution. So I'm not sure there really is a problem here.

Two provisions I'm not so sure about are provisions about the disclosure of crypto keys (19.4), and provisions about secret searches (20.3), but we cannot implement these provisions in a manner that violates the 4th and 5th amendments.

Ship it. If the online civil liberties people bitch about everything we'll be perceived as crying wolf. Save the fights for things that are actually problematic.

OrinKerr.com : Senate Ratifies Cybercrime Treaty

Gilmore is filing for the Supreme Court. Interestingly, they've dropped the arguement that the ID requirement is a violation of the 4th amendment and are simply focusing on the fact that TSA's signs are misleading as to the ID requirement.

Gilmore goes to the Supreme Court [PDF]

A suspicionless physical or x-ray search at the border of an inanimate object such as a person’s luggage or vehicle is generally viewed as reasonable because it does not pose the same degree of intrusiveness as searches of the human body. Furthermore, more intrusive or destructive border searches of such inanimate objects also may not require “reasonable suspicion.” In United States v. Flores-Montano, the Supreme Court held that the dismantling, removal, and reassembly of a vehicle’s fuel tank at the border was justified by the United States’ paramount interest in protecting itself and that it did not require reasonable suspicion. The Court found that the dignity and privacy interests that require reasonable suspicion for highly intrusive searches of the person did not apply to vehicles being examined at the border.

So, this article has lots of information about border searches. There is an argument that if you can completely dismantle a fuel tank at a border and put it back together, you ought to be able to dismantle a computer. However, I think there is also a counter argument, as the contents of a laptop are broad and extremely personal in nature and far more intrusive then searches of other inanimate objects. I think there is room for an amicus brief or even a court case arguing that you cannot search a laptop at a border unless you have reasonable suspicion.

Unfortunately, the bar for reasonable suspicion (which is all the suspicion needed for the "chemical enema" Acidus referenced in his post) seems to be so low that its basically a meaningless standard.

In United States v. Forbicetta, the court found reasonable suspicion to exist where Customs officials acted on the following objective facts: (1) the suspect arrived from Bogota, Colombia, (2) was traveling alone, (3) had only one suitcase and no items requiring Customs inspection, (4) was young, clean-looking, and attractive, and (5) was wearing a loose-fitting dress.

What a bunch of bullshit. Sounds like everyman (or everywoman as the case may be).

So, if there is anything that can be done here, its thin, thin, thin...

Protecting our Perimeter: Border Searches under the 4th Amendment

The routine border search of Romm’s laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under “official restraint.”

Finally, and for the first time in his reply brief, Romm argues the search of his laptop was too intrusive on his First Amendment interests to qualify as a “routine” border search. See generally Okafor, 285 F.3d at 846 (noting the difference between routine and non-routine searches). We decline to consider this issue here because “arguments not raised by a party in its opening brief are deemed waived.” See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Therefore, evaluating the border search of Romm’s laptop solely as a routine search, we hold the district court correctly denied Romm’s motion to suppress.

Here the 9th blows right past the question of whether laptop searches are "routine." They assume it is. Romm's lawyers raise some questions about that, and the 9th refuses to consider them for a technical reason. They are underestimating the implications of their decision.

US v. Romm

Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.

In this case a standard of suspicion is set before border guards can detain someone for hours hoping their bowel movements might produce cocaine balloons. That standard is very low, but there is a standard. It cannot be done at random. The question is whether a search of a laptop's contents is "routine" or whether it is special. Note Brennan and Marshall's dissent, which is much more along the lines of my thinking then the majority.

US v. Montoya De Hernadez