If a false entry in a database leads to a unconstitutional police search that reveals illegal drugs, does the government get to hold it against you?

That's the question the Supreme Court will tackle on Tuesday in a case civil liberties groups such as the Electronic Privacy Information Center argue will have broad implications in a world where we are constantly being evaluated against databases and watch lists that are riddled with frustratingly persistent errors.

"In these interlinked databases, one error can spread like a disease, infecting every system it touches and condemning the individual to whom this error refers to suffer substantial delay, harassment, and improper arrest," EPIC director Marc Rotenberg argued in a friend of the court brief (.pdf).

Supremes Mull Whether Bad Databases Make for Illegal Searches | Threat Level

Old Policy:

The U.S. Customs Service must guard the rights of individuals being inspected to ensure their personal privacy is protected. Therefore, as a general rule, Customs officers should not read personal correspondence

New Policy:

In the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States.

Same old fucking excuse:

DHS spokeswoman Amy Kudwa says "The decision to change standards reflects the realities of the post 9/11 environment."

New Border Search Policy Far Broader, New Documents Reveal | Threat Level from Wired.com

More hand wringing about the need for comprehensive repudiation of America’s culture of civil liberties. I figured the tone of this kind of talk would be winding down these days.

Our Constitution, Dershowitz writes, “was designed with the ‘reactive state’ in mind.” But now the state has taken on an ever-more-important preventive function, stopping terrorism before it can occur. Our legal system, however, has not caught up with this new function.

Torture warrants, Dershowitz insists, are one way to shine law’s light on this darkness, especially if one believes there are times when torture should be permitted.

“We need to develop a jurisprudence for the emerging preventive state. … Black holes in the law are anathema to democracy, accountability, human rights and the rule of law.”

How realistic is the specter of nuclear terrorism?
Are these changes necessary to prevent it, or is this just facism feeling around for a rationalization?
It seems to me that surveillance is more central to this preemptive law enforcement system than torture. Does Dershowitz also think we should have warrantless surveillance warrants?

To Torture or Not to Torture - Paper Cuts Blog - NYTimes.com

Customs and Border Patrol agents can grab your laptop, BlackBerry, or external hard drive without needing so much as a reason, but a new bill introduced last week to Congress would at least put some limits on how border searches could be done.

"I was deeply concerned to learn about the lack of protections individuals' have when their electronic equipment is randomly seized," said Rep. Loretta Sanchez (D-CA), who introduced the bill. "With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information."

Note what her bill will not do—make searches more difficult.

This isn't what we really want, as it doesn't attempt to set any limits on searches. It does add more transparency to the process, and that is a good thing. It should be supported.

Sanchez's bill would bring more routine to the search process. The bill requires the government to draft additional rules regarding information security, the number of days a device can be retained, receipts that must be issued when devices are taken, ways to report abuses, and it requires the completion of both a privacy impact study and a civil liberties impact study. Travelers would also have the explicit right to watch as the search is conducted.

Sanchez also wants data about the searches, which would have to be turned over to Congress once per quarter. Specifically, she wants to know how many searches are being done, where they take place, and the race and nationality of those being searched.

The Department of Homeland Security actually issued search rules over the summer; while they were the first rules made public on the process, which had started to look quite ad-hoc, they still came in for criticism from groups like the Association of Corporate Travel Executives. ACTE, which doesn't like have executive laptops pinched whenever someone travels overseas, complained in early August that devices could basically be kept indefinitely, the data could be shared with foreign governments, and no data destruction procedures were spelled out.

This is unlikely to make it out of committee in any form before the end of the current congress. The situation is getting much needed attention though.

New bill would tighten rules for DHS border laptop searches

The Massachusetts Bay Transportation Authority filed a suit in federal court on Friday seeking a temporary restraining order to prevent three undergraduate students from the Massachusetts Institute of Technology from presenting a talk at the DefCon hacker conference this weekend about security vulnerabilities in payment systems used in the Massachusetts mass transit system.

Someone just joined "the club."

DefCon: Boston Subway Officials Sue to Stop Talk on Fare Card Hacks | Threat Level from Wired.com

The Transportation Security Administration suspended Verified Identity Pass from enrolling any new passengers in its get-through-security-faster program on Tuesday, after the company lost (and then oddly found) a unencrypted laptop containing personal information of 33,000 people who had applied for the so-called Registered Traveler program.

Well, that didn't take long, did it.

Registered Traveler Company Frozen After Losing Flier Data -- Updated | Threat Level from Wired.com

Here is Chertoff's USA Today editorial. It provides a lot of explanation of the "broad" authority that they have and the importance of being able to search things but at no point does it directly engage the need for random searches without reasonable suspicion.

We cannot abandon our responsibility to inspect what enters the U.S. just because the information is on an electronic device. To do so would open a dangerous window for terrorists and criminals to exploit our borders in new and unacceptable ways.

And that is why we are now randomly inspecting international internet traffic! Oh, wait, we aren't, and in fact we just agreed to a new FISA bill that would require a warrant to do that... It turns out I have no idea what I'm talking about.

Opposing view: Searches are legal, essential - Opinion - USATODAY.com

Customs and Border Patrol at the Department of Homeland Security was just given the green light to search and seize laptops at the border, without probable cause, by the Ninth Circuit Court of Appeals. They can deny entry to anyone who refuses to give up their laptops and password. This is an affront to our progressive values of privacy and protection from unwarranted search and seizure.

This is the CAP Action Campaign I mentioned during my talk at the Last HOPE. You can use this form to request that Customs perform a privacy impact assessment on the practice.

I Am Progress - Hands Off My Laptop

People always ask why they should worry about unwarranted police surveillance or intrusions. If you've got nothing to hide, you've got nothing to worry about, right?

Its not about whether or not you’ve got something to hide. Its that you have to think about it.

The criminal lives life looking over his shoulder, because he knows that he may be targeted by the police. His actions make him a target, and he lives in fear of discovery.

When the police target innocent people, those people begin to look over their shoulders, too. They adopt an internal policeman. They self-censor; every action reconsidered from the perspective of a paranoid investigator – common desires unfulfilled for the risk that they may be questioned or misinterpreted. The soul becomes imprisoned by fear and life is diminished.

That is why 4th Amendment rights matter.

The nation's terrorist watch list has hit one million names, according to a tally maintained by the American Civil Liberties Union based upon the government's own reported numbers for the size of the list.

American Civil Liberties Union : Terrorist Watch List Hits One Million Names