Sunday, October 26, 2008

Laptops And The Law: Presumption Of Innocence

Presumption of innocence is a core principle of American law. Laws about computers are violating this principle.

BoingBoing (1)

A 40-year-old substitute teacher faces up to 40 years in prison after being convicted of exposing children to pornography on a computer at the Connecticut middle school where she taught.

I suppose it's remotely possible the charges are valid. But the story doesn't add up. It seems far more plausible from the accounts I'm reading that this woman, who had no prior criminal record and a clean teaching history, was using an insecure edition of Internet Explorer and was hit with an adware infestation she didn't know how to deal with.

BoingBoing (2)

The Connecticut substitute school teacher who exposed 11 and 12-year-old students to porn in the classroom -- unintentionally, she says, because of malware on an infected PC -- may now go to jail. If her claims are true, she'll be the first American ever jailed for having had the misfortune of being forced to use a buggy school computer, with incompetent or nonexistent tech support from that school's administration despite repeated requests for help.

Huffington Post

Imagine you're on your way home from a family vacation or business trip and some border agent or Transportation Security Administration (TSA) screener stops you or a family member at airport security and insists that you turn on your laptop. They then demand your password so they can browse around and they follow that by confiscating your computer until a later date -- with no charges filed and no reasonable suspicion.

Like air travel isn't dehumanizing enough, right? And would most of us have any idea how to even respond to such a sudden and arbitrary invasion of our privacy?

That scenario has actually been happening right here in the United States of America and it's the reason Senator Russ Feingold (D-WI) has authored S. 3612, the Travelers' Privacy Protection Act of 2008, which would ensure that American citizens and legal residents returning to the U.S. from overseas are not subject to invasive searches of their laptops or other electronic devices without any suspicion of wrongdoing.

"Most Americans would be shocked to learn that upon their return to the U.S. from traveling abroad, the government could demand the password to their laptop, hold it for as long as it wants, pore over their documents, emails, and photographs, and examine which websites they visited - all without any suggestion of wrong-doing," Feingold said. "Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy. This bill will bring the government's practices at the border back in line with the reasonable expectations of law-abiding Americans."


Secretary Chertoff's description of the newly published DHS policy on laptop searches was not just misleading – it was flat-out wrong. In an interview with, the Secretary stated that "[w]e only do [laptop searches] when we put you into secondary [screening] and we only put you into secondary [screening] ... when there is a reason to suspect something."

But the actual policy that DHS published says the exact opposite. It does not even mention secondary screening, let alone limit laptop searches to those cases, and it expressly states that Americans' laptops may be searched "absent individualized suspicion."

Secretary Chertoff's blatant mischaracterization of the DHS policy contradicts his claim to be engaging in greater "openness and transparency" on this important issue. His statements make it clearer than ever that as we work to protect our national security, Congress must also act to protect law-abiding Americans against highly intrusive searches.

To give another example, I believe (but haven't been able to verify) that the presence of child porn on a computer is enough to secure a conviction. To naive users this seems very reasonable. However, both through adware and hacking, it's possible to put images on another person's machine without their consent or knowledge. The scenario's far-fetched in the case of child porn, but the case of the Connecticut substitute teacher - who may have received jail time because her school board failed to protect themselves against adware - illustrates the importance of putting the burden of proof where it belongs and having laws which avoid naive and inaccurate assumptions about how computers work.

Obama's political apparatus solved the question of how to employ Web 2.0 technologies for political purposes. The inverse question - how to keep lawmakers adequately informed of technological developments - is still open.