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Seuss
Error: divide byzero
Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
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Kiss one more freedom goodbye
#8311401 - 04/21/08 05:27 PM (15 years, 11 months ago) |
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http://news.yahoo.com/s/nm/20080421/wr_nm/crime_childporn_dc_3
Quote:
SAN FRANCISCO (Reuters) - A U.S. Customs inspection of a laptop computer that found child pornography does not constitute an unreasonable search and seizure, a U.S. federal appeals court ruled on Monday.
Michael Arnold argued the U.S. Constitution's protections against searches without reasonable suspicion should have barred a 2005 search of his laptop at Los Angeles International Airport upon returning from the Philippines. He was later charged with child pornography and related crimes.
A lower court agreed with Arnold, but on Monday the U.S. 9th Circuit Court of Appeals overturned that decision, saying reasonable suspicion is not necessary to check laptops or other electronic devices coming over border checkpoints.
"Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicion-less border searches of travelers' luggage that the Supreme Court and we have allowed," Diarmuid O'Scannlain wrote for a three-judge panel.
With recent court cases not allowing the US to force people to give up passwords, this seems a bit backwards. I use strong encryption for almost everything I do. Not because I have illegal stuff on my computers, but because I don't want anybody to access my stuff if they steal my computer.
I also set my computers up with panic accounts. If I login under a panic account, it deletes everything. Doesn't help if they clone the disk first, but in a pinch if they ask for username/password, guess what I am giving them.
-------------------- Just another spore in the wind.
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Learyfan
It's the psychedelic movement!
Registered: 04/20/01
Posts: 34,184
Loc: High pride!
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Re: Kiss one more freedom goodbye [Re: Seuss]
#8311500 - 04/21/08 05:52 PM (15 years, 11 months ago) |
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God, this is a tough one. Even I want to say "All bets are off" when you find child porn on the guy's computer. But......(sigh)........you're right. They didn't have the right to search his computer and he should, technically, be released.
At least he probably got fucked in the ass while in prison.
-------------------- -------------------------------- Mp3 of the month: Sons Of Adam - Feathered Fish
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zappaisgod
horrid asshole
Registered: 02/11/04
Posts: 81,741
Loc: Fractallife's gym
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Re: Kiss one more freedom goodbye [Re: Learyfan]
#8311523 - 04/21/08 05:58 PM (15 years, 11 months ago) |
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Customs. All bets are off at Customs. Importing kiddie porn is illegal, whether photos or digital images. You have NO expectations of privacy at Customs.
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Seuss
Error: divide byzero
Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
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Re: Kiss one more freedom goodbye [Re: zappaisgod]
#8311564 - 04/21/08 06:07 PM (15 years, 11 months ago) |
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> Customs. All bets are off at Customs.
I know, but I never understood why I, as a US citizen, on US soil, do not have rights guaranteed by the US Constitution just because I happen to be in customs. I guess I missed the part of the constitution that makes exemptions to the Bill of Rights for special cases.
My laptop is like other peoples brief cases and should get the same protections that a brief case gets with respect to search and seizure.
-------------------- Just another spore in the wind.
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AScannerDarkly
On StrangerTides
Registered: 04/13/08
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Re: Kiss one more freedom goodbye [Re: Seuss]
#8312370 - 04/21/08 09:55 PM (15 years, 11 months ago) |
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Burn the child pornographer at the stake
-------------------- [quote]Voido said: [quote]drken said: Dont get me wrong he is a funny guy, just not a great actor. Smoke some bud and watch the movie, weed helps me pick out shitty acting. [/quote] no your just stoned. stop smoking pot [/quote]
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Seuss
Error: divide byzero
Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
Last seen: 1 month, 19 days
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> Burn the child pornographer at the stake
So we should turn into a police state in order to protect teh children? Maybe we should outlaw violence and sharp corners while we are at it.
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Mushmonkey
shiftlesslayabout
Registered: 09/25/03
Posts: 10,867
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Quote:
AScannerDarkly said: Burn the child pornographer at the stake
Easy there, killer.
We don't have any idea what they mean by "child pornography" here. For all we know it could be girls one day before they turn 18, which is really quite silly.
Of course, it's probably not, but jumping to hasty conclusions will get you in trouble eventually.
-------------------- i finally got around to making a sig revel in its glory and quake in fear at its might grar.
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Visionary Tools
Registered: 06/23/07
Posts: 7,953
Last seen: 1 year, 9 months
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Quote:
AScannerDarkly said: Burn the child pornographer at the stake
What next, burn the gambler that steals from his family at the stake, burn the drunk who beats up his kids like his daddy used to do to him, or burn someone who's got media of naked kids?
I can't advocate the questionable content, or the logic in taking pornography through such a place. But I can question why the fourth amendment seems to be a passing fad. After all, it's designed to protect people from fascists, that is until they decide to flat out ignore their own rules and just make it up as they go along.
You know what? The evidence could have even been planted. I'm surprised the guy didn't have terrorist training manuals and a letter of recommendation by OBL himself.
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Prisoner#1
Even Dumber ThanAdvertized!
Registered: 01/22/03
Posts: 193,665
Loc: Pvt. Pubfag NutSuck
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Re: Kiss one more freedom goodbye [Re: Mushmonkey]
#8313699 - 04/22/08 09:22 AM (15 years, 11 months ago) |
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Quote:
Mushmonkey said: We don't have any idea what they mean by "child pornography" here.
a woman in a photography class took pictures of her daughter naked, the kid was maybe a year old, she took the film to a lab for processing, the jackass running the lab called in the cops, she was arrested on charges of child pornography for some innocent photos that most every family has, children in the tub or their bare butt on on a towel. at what point does it become child pornography? is there a set age where the embarrassing family photos are no longer innocent
it may surprise you to know that the feds passed child exploitation laws in 1987, photos that were taken prior to the passage of those laws are exempt from prosecution, a notable case holds true for Paul Rubens, Rubens had a collection of old magazines and photos, some dating back to the 1800s, his conviction was ultimately for 'obscenity' and was made to pay a $100 fine in lieu of probation, some of the photos did include pictures of children in 'physique' poses and others were nudist magazines from the 60's and 70's. again, where is the line drawn
David Hamilton and Jock Sturgis, to notable and controversial photogrophers, many of their subjects are nude adolescent girls, Sturgis was arrested in '91 by the FBI, his equipment and work confiscated and later returned after a grand jury refused prosecution, Sally Mann, know for photographing children including her daughters nude, whos photos are displayed in galleries across the country. Type the 3 names into google images and see what comes up, then respond as to whether it's art or pornography
look through your mothers photo album and tell us if there's a picture of yourself in this pose, do you consider it pornography it just embarrassing, it's the sort of photo that's led to many arrests here in the US
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Yossarian22
Stranger
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Re: Kiss one more freedom goodbye [Re: Prisoner#1]
#8314391 - 04/22/08 01:08 PM (15 years, 11 months ago) |
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What freedom has been lost exactly? The right not to be searched while passing through international borders? When was this freedom in effect exactly?
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Seuss
Error: divide byzero
Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
Last seen: 1 month, 19 days
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Re: Kiss one more freedom goodbye [Re: Yossarian22]
#8314576 - 04/22/08 02:12 PM (15 years, 11 months ago) |
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> When was this freedom in effect exactly?
On December 15, 1791.
Quote:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, except at international borders, 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.
-------------------- Just another spore in the wind.
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Veritas
Registered: 04/15/05
Posts: 11,089
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Re: Kiss one more freedom goodbye [Re: Seuss]
#8314641 - 04/22/08 02:29 PM (15 years, 11 months ago) |
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Quote:
except at international borders
Isn't this the crucial distinction here? How has this freedom been violated by a search in Customs at an International airport?
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Yossarian22
Stranger
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Re: Kiss one more freedom goodbye [Re: Veritas]
#8314726 - 04/22/08 02:53 PM (15 years, 11 months ago) |
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Swing and a miss!
That wasn't part of the 4th amendment, although the "international borders" exception has long been part of case law.
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Veritas
Registered: 04/15/05
Posts: 11,089
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Re: Kiss one more freedom goodbye [Re: Yossarian22]
#8314771 - 04/22/08 03:05 PM (15 years, 11 months ago) |
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http://en.wikipedia.org/wiki/Border_search_exception
This freedom is not a recent loss, however, according to this article.
As to the "reasonable suspicion" requirements:
Quote:
In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches.[6] CBP may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion".[7] Under this analysis, searches of a traveler's property, including luggage, briefcases, wallets, and other containers are "routine," while searches of a traveler's body, including strip, body cavity and involuntary x-ray searches, are considered "nonroutine.
Obviously, this search would be considered routine, and thus not subject to the requirement of reasonable suspicion.
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johnm214
Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Kiss one more freedom goodbye [Re: Veritas]
#8314794 - 04/22/08 03:09 PM (15 years, 11 months ago) |
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Quote:
Veritas said:
Quote:
except at international borders
Isn't this the crucial distinction here? How has this freedom been violated by a search in Customs at an International airport?
seriously, there's like a page worth of material there, read the first ten and fourteenth amendments, it'll be good for you
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johnm214
Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Kiss one more freedom goodbye [Re: Seuss]
#8314854 - 04/22/08 03:22 PM (15 years, 11 months ago) |
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Quote:
Seuss said: > When was this freedom in effect exactly?
On December 15, 1791.
Quote:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, except at international borders, 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.
Here's what the supreme court has said:
Quote:
The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . ." This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required. 12 The historical importance of the [431 U.S. 606, 617] enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest.
I think the fact that the law they refer to, passed by the same congress as proposed the Bill of Rights, required "shall have reason to suspect" cuts against the argument that this law gave plenary authority to customs inspectors. Why had this language been included if it meant nothing?
I don't think this case is anything new, meerly the natural consequence of the border exception, but I think a warrantless, suspcionless search is indeed invalid even if we look to what congree passed so long ago.
And then again, I don't necessarily think that congress is consistant. I don't like this originalism shit where instead of looking at what the words meant at the time of their passing, we look at their effect, or what the congress probably wanted them to mean. This simply allows a legislative intent argument, which I think is indefensible, to look back 200+ years w/ little accuracy.
The constitution means what it says, not what someone who voted for it wanted it to mean.
The biggest joke about this is the current court's most vehement opponent of "legislative history, scalia, endorces an orignialist philosophy that allows the court to conclude that "all people shall enjoy equal protection of the laws" means gays can be excluded from marriage because the people who passed that amendment wouldn't have understood it to cover that conduct.
Bullshit, there's a difference between what the words mean when they are passed and what the legislature wanted them to mean, or what consequences the legislature failed to conceive of.
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Prisoner#1
Even Dumber ThanAdvertized!
Registered: 01/22/03
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Loc: Pvt. Pubfag NutSuck
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Re: Kiss one more freedom goodbye [Re: Veritas]
#8314926 - 04/22/08 03:38 PM (15 years, 11 months ago) |
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Quote:
Veritas said:
Quote:
except at international borders
Isn't this the crucial distinction here? How has this freedom been violated by a search in Customs at an International airport?
the customs checkpoints are still on their own respective sides of a border, the US checkpoints are on US soil and manned by US personel
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johnm214
Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Kiss one more freedom goodbye [Re: Prisoner#1]
#8315137 - 04/22/08 04:37 PM (15 years, 11 months ago) |
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And for those w/ any residual doubt as to the affect of the prohibition of various drugs upon the fourth amendment, you need only look to the first case inventing the "border exception" which was a prohibition case (alcohol. Like many other fourth amendment rights which have no evaporated, they all flow from drugs: Border crossing, Automobile exception(s), "open field" exceptions (no warrant needed even when officers trespass, if they tresspass on a field), and others.
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Veritas
Registered: 04/15/05
Posts: 11,089
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Re: Kiss one more freedom goodbye [Re: johnm214]
#8315221 - 04/22/08 05:01 PM (15 years, 11 months ago) |
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Quote:
johnm214 said:
Quote:
Veritas said:
Quote:
except at international borders
Isn't this the crucial distinction here? How has this freedom been violated by a search in Customs at an International airport?
seriously, there's like a page worth of material there, read the first ten and fourteenth amendments, it'll be good for you
I've read the Constitution, thank you. While I agree that there are Constitutional protections against search and seizure, how is it unreasonable for a Customs official to search someone's property, when this is what Customs is charged with doing? It's not as though they broke into this person's home & searched his computer...he intentionally entered the country with illegal materials on his computer.
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johnm214
Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Kiss one more freedom goodbye [Re: Veritas]
#8315332 - 04/22/08 05:26 PM (15 years, 11 months ago) |
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because customs had neither suspicion, nor probable cause, nor a warrant
in the absence of these, a search is presumtivly unreasonable.
As I've stated above, I don't find the basis for this exception to be well rooted, till shown otherwise.
What does it matter if customs is charged w/ searching through people's bags, which I don't think they are.
Congress writes laws, does that mean you have no constitutional protection when they decide to legislate your property away for no reason? Will you decide that's a reasonable excercise of their authority?
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Veritas
Registered: 04/15/05
Posts: 11,089
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Re: Kiss one more freedom goodbye [Re: johnm214]
#8315374 - 04/22/08 05:38 PM (15 years, 11 months ago) |
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Quote:
The overall mission of the U.S. Customs Service “is to ensure that all goods and persons entering and exiting the United States do so in accordance with all United States laws and regulations”
http://rand.org/pubs/monograph_reports/MR1262/MR1262.ch7.pdf
Passing through Customs means that you will present your belongings for search & potential seizure of illegal goods. This means that "probable cause" need not apply. Those who opt to pass through a Customs checkpoint are giving consent to this search, and should be prepared for any illegal items to be confiscated.
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johnm214
Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Kiss one more freedom goodbye [Re: Veritas]
#8315421 - 04/22/08 05:54 PM (15 years, 11 months ago) |
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you have an interesting view of consent, but it's not the legal view
"For, no matter how subtly the coercion was applied, the resulting �consent� would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed." Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)
You cannot obtain consent by threatening an an illegal act. US citizens have the right to enter the country. The law cannot require you to forfeit that right to secure another.
edit:
you would deem it lawful for the government to say "you must give up your right to refuse a search of your home so that you may enjoy the right to a jury trial"? If you want the jury trial, afterall, you must only allow a search of your home.
This is silliness, and is surely not consent. A citizen has the right to enter the country, which is why no court has construed the border exception to flow from a consent issue, rather than a "reasonableness" inquiry.
Edited by johnm214 (04/22/08 06:49 PM)
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Prisoner#1
Even Dumber ThanAdvertized!
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Re: Kiss one more freedom goodbye [Re: Veritas]
#8315578 - 04/22/08 06:32 PM (15 years, 11 months ago) |
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Quote:
Veritas said: Those who opt to pass through a Customs checkpoint are giving consent to this search
and if I opt not to cross the border legally through a customs checkpoint?
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