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Borderline searches and seizures

By Ed Foster, Section The Gripelog
Posted on Fri Jun 27, 2008 at 09:41:05 AM PDT

Should the Fourth Amendment's protection against unreasonable searches and seizures apply when U.S. Customs agents seizing your laptop at the border to examine your data? Currently the Department of Homeland Security as well as the courts say that such searches are permissible even when then there are no grounds for suspicion against you. But many of my readers feel that it's not only an unreasonable practice but a dangerous invasion of privacy.


A Senate committee hearing this week looked into this issue that we've discussed before. U.S. Customs and Border Protection can and do seize computers and other electronic devices at the border, in some cases keeping them for weeks at a time even when there's no data contraband found. Unfortunately, the Senators received no meaningful answers to their questions about the extent of the program, what kind of things the CBP is looking for, and what it does with the data it obtains.

Many readers responded to our earlier discussion that the CBP's practices are an unconscionable invasion of privacy, if not unconstitutional. "Either repeal the Fourth Amendment -- and maybe the rest of the Bill of Rights for good measure -- or fire the TSA and stop the border patrol's random searching," wrote one reader. "There used to be rule of law in this country. 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' Stepping across the border or onto an airplane is not 'probable cause.'"

Unfortunately, most of the court decisions on the issue have so far gone the other way. In April, the United States Court of Appeals for the Ninth Circuit ruled that the CBA could conduct searches without probable cause. And certainly some readers agreed that our normal privacy rights don't apply at the border. "While discretion and courtesy are excellent ideas, folks coming over any national border have no right to privacy," wrote one reader. "That's not to say that border guards should be harsh or impolite, but 'right' is a legal term that has no place in this discussion -- in short, a straw man. Second, a skilled cop will often engage a suspect or "person of interest" in a wide range of questions, to get a gestalt of that person's answers, demeanor, and behavior. If one of those questions happens to be 'what country are you from,' or 'are you a Muslim,' so what? I would ask that the guards (my employees as a taxpayer) ask it politely, but I wouldn't call it off limits."

But even that reader was concerned about what things the border guards might be looking for besides evidence of terrorism or child pornography. Are the searches really about fighting terrorism or piracy? "How long do you suppose it will be before Microsoft prevails upon U.S. Customs to check those laptops to make sure they're running Genuine Windows?" wrote another reader. "That's assuming that Customs isn't already doing so."

A reader who is often harassed when traveling because his name is similar to one on the TSA lists bemoaned how misguided our border security often is. "I'm a vet, I've been decorated, and I've never done anything more subversive than apparently share a name similar to someone who the feds don't like," the reader wrote. "The government spends a fortune shooting -- at best -- fleas while missing elephants. Airplane security could be obtained by creating barriers to the cockpit that actually work and by putting marshals on EVERY flight. That's too simple though--better to search old ladies bringing their grandkids to Disney than to use some common sense. Screening laptops coming across the border is maybe even dumber ... Millions of files cross the border electronically but we employ people in futile searches of laptops. Give me a break."

Benjamin Franklin once said that they that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety, another reader noted. "More secure borders is a noble intent. But do we want the KGB manning the gates? If they tell you that the innocent have nothing to hide, they never met a cop trying to meet quota. ... I run a network with HIPPA requirements and every laptop MUST be encrypted. It is not a choice to let anybody just look at your laptop. If they want to see it boot, that's fine. If they want to know what's on it -- GET A WARRANT! Otherwise 200 years of Constitutional rights and freedoms are gone and Democracy goes with it."

Do we really have to choose between liberty and safety on our borders? And does prying into personal and business data on people's laptops really make us any safer, or is it just a waste of CBP resources that could be better spent on scanning container cargo for nukes, for example? Tell us what you think - post your comments below or write Ed Foster at Foster@gripe2ed.com.

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Borderline searches and seizures | 15 comments (15 topical) | Post A Comment
Where exactly DO we draw the line?[ Reply to This ] (none / 0) (#1)
by Anonymous User on Fri Jun 27, 2008 at 11:32:56 AM PDT

Okay, first, we have to get the constitutionality issues out of the way. The VERY FIRST congress, after the constitution was ratified, passed a law specifically allowing searches, without a warrant, or even probable cause, or even reasonable suspicion, of all persons and materials that cross the border. These searches were authorized to be done in the Customs area of the port, or in a border crossing station. We can assume that the members of the first Congress knew what the constitution meant.

I am guessing that the reasoning behind this is that the border is considered to shift the threshold of "reasonable". About the only thing that even requires the loose threshold of reasonable suspicion is a body-cavity search.

Next, we have to look at how far the searches go... We can see that a box of written materials can indeed contain highly illegal contraband, and something that we would want to stop from entering the country. At the same time, that box of printed materials can also contain highly private data. However, under long-accepted and more-or-less non-controversial law, that box is quite searchable by a customs agent at whim.

So, why, when those same materials are put in electronic form, would these materials suddenly be subject to enhanced privacy restrictions? I cannot think of any legal reason that this would be the case. Perhaps the actual controversy is not the search, but the fact that a real search requires seizing the items. This is a new legal question, since a decent search of a box of magazines can be done in a few minutes, and the traveler can go on their merry way. Seizing a hard drive for a complete search, on the other hand, really sucks for the person that was hoping to actually use that hard drive.

What is the solution? The only one I can think of would be for CBP to make a copy of data if they feel the need, with strict retention requirements if no illegal material is found. Make the data "air-gapped", so the only way to get a copy out would be the issuance of a warrant.

What to do about encrypted data? That's a tough one. It can be just as illegal as our theoretical unencrypted contraband. The fifth amendment clearly states you cannot be forced to hand over the encryption key. However, locking stuff in a safe doesn't mean it cannot be searched at the border, so why would locking it on a hard drive exempt your laptop? For that, just rule that if you do not hand over your key so the data can be copied into our theoretically privacy-protected data store, you cannot bring the drive into the country either, and it has to be destroyed. (Yes, the current administration would just ignore the restrictions of any such law, if it did exist, but that is another matter entirely.)

Now, given all that, is it even worth the effort? Can't answer that one... that is what we have elected officials for, however imperfectly they serve.

SirWired

[ Reply to This ]



This tempts me[ Reply to This ] (none / 0) (#2)
by Anonymous User on Fri Jun 27, 2008 at 01:01:56 PM PDT

I own an old laptop...so old it's pretty much useless except as a paperweight. But it does boot, and it still works as a word processor, if nothing else. I'm definitely not going to be bringing my good laptop with me when I cross the border, but I wonder what customs would make of a few thousand randomly generated garbage files, encrypted with 1024 bit PGP keys? I'm not under any obligation to provide a PGP key, especially if I do not actually know it (which is how I'd lock the files...use random alphanumeric strings as seeds, then forget them). They'd be perfectly free to copy them, since that's apparently legal. But I wish them lots of fun in trying to read them. I do wonder though...it's possible to make a CD-ROM that silently, and without prompting the user, formats hard drives. If the disk is labeled as such ("This disk auto-formats drives, do not insert into computer" or something like that), would you get into trouble carrying it in your disk case across a border? *grin*

[ Reply to This ]


Clutter[ Reply to This ] (none / 0) (#3)
by Anonymous User on Mon Jun 30, 2008 at 06:40:22 AM PDT

Your earlier story, "Barracuda Sneakwrap has a nasty bite", had had 29 comments as recently as last Friday. Imagine my surprise today to find that it has received 15-20 new comments in only three days.

Turns out to be one single wack-job who has replied to half the pre-existing comments ... in Chinese or something equally unintelligible to me and, no doubt, to most of us here.

Is there no way to avoid that kind of clutter? I suppose suggesting enforcing English-comments-only will just bring charges of racism or similarly, even though a) 99% of those who will have something useful to contribute will be capable of writing sufficiently-intelligible English and b) the whole readership can be assumed to be able to read it, since the top-level articles are only written in English, but only a small fraction will be able to read anything else.

[ Reply to This ]



The clutter[ Parent | Reply to This ] (none / 0) (#4)
by LasVegan on Mon Jun 30, 2008 at 07:55:59 AM PDT

It was spam from some Japanese (I'm taking Ed's word for this, I don't have those fonts installed on this box. I also can only read a few symbols of Chinese and none of Japanese, so I can't reliably tell them apart.) guy who has figured out how to beat the captcha.

[ Parent | Reply to This ]


It's a spammer[ Parent | Reply to This ] (none / 0) (#5)
by sconeu on Mon Jun 30, 2008 at 10:01:32 AM PDT

I try to go through and clean them out, but I will really only concentrate on the stories on my front page.

Security question:

"Which of the following is one of the United States?
Bloodhound, Collie, Beagle, Retriever, Chihuahua, Alaska"

I believe Chihuahua is one of the states in Mexico.  

--
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the United States of America.
[ Parent | Reply to This ]



Turning off href[ Parent | Reply to This ] (none / 0) (#6)
by Ed Foster on Mon Jun 30, 2008 at 11:42:07 AM PDT

The Japanese spammer (and, yes, it is Japanese -- I can read hiragana and katakana, the Japanese phonetic alphabets) is particularly pernicious. He seems to have found a way around my captcha and can post virtually at will. With considerable effort we recently eliminated thousands of his link spam comments, only to see him post over a thousand more in a short period Friday night. I am getting discouraged.

At LasVegan's suggestion, I've now turned off href= as allowable HTML in the comments. I don't know if that's going to stop him or any of the other link spammers because I don't know if they'll notice that their links no longer work. But we'll give it a try. If anyone has other suggestions, I'd love to hear them.

Ed



[ Parent | Reply to This ]


We appreciate[ Parent | Reply to This ] (none / 0) (#7)
by Anonymous User on Mon Jun 30, 2008 at 11:54:13 AM PDT

...your efforts and the work you put into the site Ed.

[ Parent | Reply to This ]


Href=[ Parent | Reply to This ] (none / 0) (#8)
by LasVegan on Tue Jul 01, 2008 at 06:43:04 AM PDT

Treat the presence of an href= the same as a captcha failure--don't post it, offer it back for them to fix. His script might keep trying but nothing will actually post.

[ Parent | Reply to This ]


Re: Href=[ Parent | Reply to This ] (none / 0) (#10)
by Ed Foster on Tue Jul 01, 2008 at 01:28:33 PM PDT

Well, it turns out that it's not going to be that easy to do. When I went to post last night's story, the hyperlinks didn't work there either, so I had to turn href back on. Do any of my volunteers know Perl really well? Jeff and I could definitely use some help in figuring out how to fix some of these things. -- Ed

[ Parent | Reply to This ]


I think you're going at it backwards[ Parent | Reply to This ] (none / 0) (#11)
by LasVegan on Wed Jul 02, 2008 at 08:03:31 AM PDT

Don't try to filter href= from the output--that would cause exactly what you describe. I'm saying to reject any post containing href=. Unfortunately, perl isn't a language I've learned, I can't help you implement it.

[ Parent | Reply to This ]


Yeah[ Parent | Reply to This ] (none / 0) (#13)
by Anonymous User on Fri Jul 04, 2008 at 11:49:32 AM PDT

It needs to be limited to comment posting. Better yet, only to anonymous user posts and, perhaps, sufficiently-recent registrations (based on post-count rather than duration, even).

Then established users can still post functional links. If any of those abuse the privilege, you can simply yank it, or suspend the account, or whatever.

Trickier would be to still let (some) anonymous users post links. Disallowing link posting by anons from particular IP ranges, perhaps -- any time a spammer starts abusing an IP range, it gets added to the black list. Innocent people from that range can still post comments, but not ones with working links, (not anonymously -- they still can if they register and make a few posts).

Another angle of attack is to figure out how the captcha might be circumvented. The obvious answer, that the guy's posting manually, is not applicable if he made over a thousand posts in only a few minutes.

Another, but it might not sit well with some people, is to silently reject foreign-language posts. Requiring posts to have a minimum of five English words from some dictionary would work for a while, especially if this comment got edited or deleted once you read it and it was unclear why the posts in question were failing. Eventually someone would guess and start adding random English-language junk to spams to get them by. Requiring the whole post to be fairly close to English-prose character-frequency statistics might work, for longer posts anyway.

Changing the captcha code a bit might break the lozer's script without affecting anyone else.

Most of the above could be applied solely to posts with links -- even the captcha itself could be required solely on posts with links, for that matter. All of the posts we seek to prevent have links, after all.

I assume that this:

<input type="hidden" name="patch2007b" value="9.6d934cffda03be.17.57AjV7.5.7ddf4e908c0e110aac.17.ExknXR" />

is intended to detect scripts that just fill/change all form fields? Making it non-hidden and adding a (human-readable only!) note elsewhere on the page saying to leave the contents of that field be might help trip up such scripts -- the smarter ones will look for type="hidden" and ignore those fields, but might edit everything else.

Changing the name of the big textarea to something other than "comment" might trip up some of the stupider scripts. (Smarter ones will assume any non-hidden textarea is a comment field, and flood all of them with copies of the spam message.)

Best bet, though, may be simply to reject anything with more than a certain proportion of the text part of links. Most of the spew I've seen here fails a "less than 50% of the visible text is blue and underlined" test, and none of the legitimate comments.

P.S. Is "9.6d934cffda03be.17.57AjV7.5.7ddf4e908c0e110aac.17.ExknXR" an encoded representation of "Yellow", by any chance? Or a hash of same?

If so, the captcha may be bypassed by anyone who manages to reverse-engineer the coding. In the case it's a hash, the bypass would be to change that form field to the hash of a known string, and put that known string in the visible captcha field (patch2007a), requiring only knowledge of the hash algorithm.

Better would be for the 2007b field (or the prior, "form key" field) to be temporarily stored in a database table with the correct answer, at the time the form and captcha question get generated at the server side; a submission has the submitted answer compared with whatever is stored with the key field in that DB table. The code is then not a hash or any other discernible function of the correct answer, but instead a magic cookie.

The other apparent way to beat the captcha is to brute-force it -- parse out the six possible answers and pick one at random, then try to submit. Out of 6000 attempts, 1000 or so will succeed. This can be blocked in a few ways:

  • Images instead of text, at least raising the bar to require OCR to parse out the possible answers.
  • Non-multiple-choice-format questions, such as math problems (ENGLISH-LANGUAGE WORD PROBLEMS or they could be fed to "calc.exe"!); they'd have to completely replace the current multiple-choice ons.
  • Automatic temporary IP bans, say for an hour, every time there are e.g. three wrong answers in a row from the same IP. That slows the flood from brute-forcing to a trickle -- you'll get one or two successful posts, then nothing for a blissful 60 minutes as the bot gets itself temp-banned, then one or two successful posts, then nothing. For extra added fun, ignore the last two octets in this, so three failed postings (all due to WRONG CAPTCHA ANSWERS, mind you) from IPs that all start with 183.36 will result in all posts from IPs that start with 183.36 being rejected for an hour. (Don't accept a post with an answer of "--fill me--", but don't count it as a "strike" either; perhaps only count a "strike" if the answer submitted is identical to one of the five "wrong" answers. This will make it virtually incapable of punishing a legit human, but still guaranteed effective against scripts. Relax "three strikes in a row" to "three strikes in a one-hour period" on top of that. Bye-bye bots -- the few that trickle through can be mopped up by hand due to their low rate, unless someone goes after you with a large distributed botnet, and even there, what would have been a tsunami becomes a mere flood.)


[ Parent | Reply to This ]


Word problems[ Parent | Reply to This ] (none / 0) (#14)
by Anonymous User on Fri Jul 04, 2008 at 12:23:11 PM PDT

Math word problems is a good idea, but they shouldn't be too naive or they still fall to brute-force attacks. Parsing out numbers, and guessing operations (perhaps based on words or phrases, e.g. "together" suggests addition, "how many more" suggests subtraction, etc.).

Here's a fairly good example. "John has five apples and eight oranges. Amy has three apples and two oranges. How many cores will be left over once they eat them all?" The answer is obviously eight, since that's the total number of apples and only the apples will result in cores. No script is likely to be able to solve problems resembling this one -- there's nothing easily parsed out of that to suggest which numbers to use of those supplied. The downside is that a fairly clever script might figure out that there are only a few likely right answers and try one at random, and a percentage will get through.

The ending, and right answer, can be changed in a few ways that machines would have difficulty identifying:

  • How many fruit do they have? 18
  • How many fruit that won't leave cores? Ten
  • How many fruit does the one with the fewest have? 5
  • If they divide what they have equally between them, how many cores will each leave behind? Four
  • Ditto, but how many peels? Five

This amount of possible variety makes the number of machine-guessable possible right answers fairly large, at least as large as the number of multiple choice answers now. It can be made larger by throwing in irrelevant details, e.g. "Amy is seventeen years old". Indeed, best is to have a small number of "stories", which each contain as many as ten different numbers, and for each one several possible questions, which use different subsets (two or three, typically) of those numbers, and whose answers range fairly widely, preferably into the low triple-digits. Throw in random numbers, plus images that may include needed numbers (e.g. a girl in a soccer jersey with "56" on the front, and elsewhere an image that looks like text with the number 23, used as a number in the text), and make these large and clear, and you further confuse bots. They will need to use OCR, and a single image might show many potentially-significant numbers. Picture a baseball scoreboard and a question that might ask how many runs the visiting team scored, period or in a particular inning or even in a different game entirely, if the text says "Pictured is the final score from their first game against one another. In the rematch, Dumont's Dudley scored their only run, in the third inning. What was Dumont's score?" -- the answer, one, may not even appear anywhere literally, the scoreboard image is completely irrelevant, and we've also got the number three occurring in the text where it's completely irrelevant. There might be a total of two dozen numbers, 20 of them (inning scores and final scores) in the image, plus four in the text, none of which are (or are used to compute) the genuine right answer. But of course the question could be "What inning contained Dudley's run" (3) or "What did Dumont score in the second inning" (zero) or something about the scoreboard image instead. An image that, I might add, OCR software might choke on, perhaps reading "0001032017" instead of ten separate numbers in a fairly plausible failure mode.

Guessing, even "educated" guessing after parsing text and images, could be made to produce a very low hit-rate, under 1%, at least in principle.

In fact, simply asking text-answer questions about images might work wonders. Have a couple dozen stock images and a few hundred questions about them with easy, unambiguous answers that OCR mostly won't work to produce, and watch the bots bash their heads against a brick wall, even if you allow for a certain amount of sloppiness in the answers.

Especially combined with the three-strikes rule suggested by the previous poster.

Just watch for someone to develop a script that exploits the finite repertoire of questions if you do this instead of math problems with random components. I'd just wait until an apparently-automated spamming spree succeeds, then completely replace all of the images and questions, wait until it happens again, and repeat as needed; it should be infrequent enough that, over all, very few spams make it through per day on average and very little work per day is actually required on average.

Only presenting and requiring an answer to the captcha if there are "href=" in the comment will further reduce any impact the captcha has on normal users while making it a bit more awkward for a would-be spammer to catalogue all of the captcha questions that can occur (if even finite).


[ Parent | Reply to This ]



Missing the obvious?[ Parent | Reply to This ] (none / 0) (#15)
by Anonymous User on Fri Jul 04, 2008 at 12:41:16 PM PDT

The database key "magic cookie" idea is good, but needs a little extra to avoid slowly bloating up to one day become a ludicrous waste of disk space. Entries need to be deleted when a post is submitted (consult, then remove the entry). Also, people who bring up the form and then for whatever reason don't submit anything will still cause it to more slowly bloat up with unused entries. Adding a third, date field and every day at 2am or whatever purging every entry in that table older than 24 hours will get rid of those, without disturbing people that happen to be posting at the time (as their post's entry should be much younger than 24 hours).

But all of this discussion may be missing the obvious.

Nobody has any business posting thousands of posts in the space of only an hour. Why not just enforce a posting volume limit per first-two-octets or first-three-octets IP block of, say, 20 posts in an hour? It's very unlikely that legitimate posters will hit this limit (and it could be waived for long-standing registered users with a history of legit posts, and/or applied solely to posts containing links, so only 20 containing links plus however-many that don't per hour). Any beyond that either fail entirely or have links stripped out or something, and maybe the IP range is blocked from posting for additional time. (Only do the latter if there's measures taken to keep it from ever hitting a legitimate human. If it only kicks in if you post 20 with links in one hour, and are not on a whitelist of registered users, and on the last three posts towards the limit the form comes up with successively more dire warnings that the limit is being approached and don't post any links for a while or else, say.)

Of course, that won't faze someone who commands a botnet, as someone else pointed out. Using a captcha that's difficult to guess (large number of possible right answers) whenever a post contains links will then reduce the volume somewhat.


[ Parent | Reply to This ]



Where exactly DO we draw the line?[ Reply to This ] (none / 0) (#9)
by Anonymous User on Tue Jul 01, 2008 at 11:24:18 AM PDT

We should draw the line at the border. As was pointed out, borders are inherently different and the probable cause requirements have always been minimal. However, the border patrol has recently been conducting domestic roadblocks and temporary checkpoints at places other than the border with the same set of criteria they use at the border, virtually no probable cause. (I have personally experienced them in the Pacific Northwest inland from the Canadian border by many miles). This I believe crosses the line that the constitution DID establish.

[ Reply to This ]


Border searches don't have to occur at the line[ Parent | Reply to This ] (none / 0) (#12)
by Anonymous User on Wed Jul 02, 2008 at 08:33:55 AM PDT

Technically, "Border" searches do not have to happen at the physical border, it being a line of infinitesimally small width. Therefore, searches have to happen some distance from the actual border. How far is too far? I think that would be a question for the courts, if evidence were seized at a roadblock where the person the evidence was seized from did not actually complete a recent border crossing. If you have recently completed a border crossing, I don't see any problem with setting up the checkpoint a few miles inland, if that happens to be the most convenient place. Yeah, a CBP checkpoint in the middle of an Interstate in Iowa would be out of line, but where should the line be drawn? For so-called "inland ports", shipping containers are not opened or inspected at the port of entry; instead they are loaded on trucks or trains, taken to some inland destination, and only there are processed by Customs, even though they may have been on U.S. soil several days, and be hundreds of miles from, their port of entry. SirWired

[ Parent | Reply to This ]


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