This article was originally posted on The Legal Satyricon

This article was originally posted on The Tactical IP Blog

A classic example is when officials, employed by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Patrol (CBP), search your possessions upon entry into the United States from a foreign country.  Mechanically, the presumption is raised that you consent to the search by entering the United States.  If you don’t want to be searched, don’t come in.  Ostensibly, the goal is to prevent certain items from being smuggled into the country — drugs, explosives, etc. — or, in the words of our Department of Homeland Security (DHS), "to combat transnational crime and terrorism . . .  (source)."  That all seems reasonable, but a hardcore civil libertarian would likely quote Benjamin Franklin in opposition: "Anyone who trades liberty for security deserves neither liberty nor security (source)."

Hang on there, Benji — an act of "terrorism" in your day was dumping some Lipton in the harbor.  It’s pretty hard to uphold the standard of the Founders in the face of more modern concerns (e.g., dirty bombs, heroin, anthrax), but try we must.  Unfortunately, it seems like our government doesn’t try very hard sometimes, as demonstrated recently by DHS, which is responsible for controlling ICE and CBP.

In the face of these more modern threats, coupled with advances in technology that make it possible to transport large amounts of data, ICE and CBP have in recent years begun detaining and searching digital media — e.g., laptops, portable hard drives, thumb drives, CDs, DVDs, iPods, yadda, yadda, yadda.  What are they looking for, you ask?  Answer:

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement. (source)

Terrorist plans — I get it.  IP infringement — I don’t.  Child porn — really?  Gotta throw that one in, so that anyone who makes a stink will look like a pedophile, I guess.

Come on, people.  Get mad.  They’re insulting your intelligence here.  DHS is charged with protecting the security of the homeland, not carrying out the marching orders of the MPAA or RIAA, all without the procedural protections of a warrant.  We’re not just talking about rifling through my dirty underwear anymore, looking for that kilo of cocaine.  You’re potentially reading my emails, skimming my privileged work product, or ogling the naughty pictures I took of my wife while we were having sexy time — all without a lick of probable cause that I’ve done anything illegal.  Not Cool.

So the question remains: How do you authorize customs officials to look for the really bad stuff (e.g., shoe bomb schematics), and, at the same time, protect the stuff that they should need a warrant to view?

To quiet concerns about potential violations of privacy, DHS issued directives this week to ICE and CBP, supposedly ordering those agencies to behave.  The new directives contain a number of "safeguards" that are designed "strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders (source)."  They read like a bunch of false measures (to me, anyway).  A few examples:

• Providing a leaflet to travelers, whose digital media has been detained, explaining any available administrative recourse
• Hanging signs around borders and ports of entry, informing that digital media is subject to search and potential detention
• Requiring approval of a supervisor to extend a detention of digital media beyond thirty days
• Allowing only a supervisor to copy information from detained digital media
• Directing a customs officer to consult with local counsel or the U.S. Attorney’s Office, if a traveler asserts that the information contained in the digital media is subject to attorney-client privilege

You can read the entire "Privacy Impact Statement" here.

I don’t know what the right answer is to the question posed above, but I do know that I expect my government to respect the notion of freedom that this nation was founded upon.  We left Britain, at least in part, because the police could stop anyone on the street at any time and demand to see their papers.  The Fourth Amendment was carefully crafted to prevent this type of abuse in the United States.  @DHS:  ur doin’ it wrong.

This story was originally published on The Legal Satyricon.

I don’t understand why producers of copyrighted content have such a hard time comprehending their customer base. We’re not that difficult to fathom. We only really have a few, simple needs:

• We want to be able to get to desired content, whenever and however we want.
• We don’t want to pay through the nose for it.
• If you make it difficult for us, there are other ways for us to get what we want. Ways you don’t like, because it means you won’t get your cut.

It’s precisely because content producers don’t understand us that we have scenarios like this.

I really thought that everyone was coming closer together, though, producers and consumers, when I discovered a service called Hulu this summer. It just so happened that I found myself, for about six weeks, in a place with Internet access, but limited cable service. I began to fret when I realized that I would not be able to get my weekly Battlestar Galactica fix – right when the last season was beginning to air. Also, with the writers’ strike delaying everything, many of my other favorite programs were still running new episodes into June. I was going to miss the season finales for a handful of shows, which I had been watching religiously at home. I began to panic a little bit.

When I finally got my wits about me, I did a few Google searches and came across the Hulu website. I couldn’t believe what I had found – ad supported streaming of television content, on demand and all in one place. New shows and old shows were all available for me to watch, at my leisure, as long as I was willing to sit through a few 30-second spots for Lipton iced tea. I discovered old and new shows that I had missed, which I could now become a fan of. I watched the entire first season of NBC’s Life on Hulu, and I continue to watch new episodes to date – even though that show airs the same night and time as ABC’s Lost, which sits as my highest priority Season Pass on TiVo. It wasn’t perfect, but I thought it was a significant step in the right direction, a step towards me being able to watch whatever I wanted, whenever I wanted, without having to pay any monetary access fee, beyond what I already pay for cable and Internet service.

One of the major drawbacks for the Hulu service was the fact that I could only access the content using a computer. At the time, this past summer, that wasn’t a problem. When I returned home, I went back to watching my 52” television and stopped using the Hulu service entirely, even though there were hours and hours of Arrested Development, The Practice, Babylon 5, and Hill Street Blues collecting virtual dust in my Hulu queue. I went back to watching my television content on TiVo, able to skip all advertising, but limited to shows which were currently airing. I began to lose hope for my dream of some day being able to watch whatever I wanted, whenever and however I wanted to watch it. Then came boxee, and I started feeling good again, believing that one day it would be possible.

Boxee is a piece of software that runs on my hacked Apple TV, which made the Hulu service available on my television. Again, it wasn’t perfect, but it was certainly good enough for me. Again, I was able to pick up old TV shows that I had missed. I was able to watch shows that conflicted with my wife’s higher priority Season Pass to Gossip Girl. Life was good. Then, in an inexplicable fit of ignorance, the content providers decided that I shouldn’t be able to watch whatever I wanted, whenever and however I wanted to watch it.

It was announced this week that Hulu will be pulling its boxee support. The creators of boxee have issued a statement describing their position. Here‘s another blogger’s well-put explanation of the situation. As of Friday, I have to go back to watching only what is currently being aired. If I miss an episode of something, if TiVo goofs and fails to record, if my wife’s addiction to GR∑∑K interferes with one of my recordings, what are my options?

• Buy another TiVo.
• Pay $1.99 on iTunes to buy an episode that I will watch only once.
• Wait a year for the DVD to come out.
• Violate current copyright laws, pirate the show I want using BitTorrent, upload it to my Apple TV’s hard drive, and enjoy.

Which one do you think most people would pick?

This story was originally published on The Legal Satyricon.

This story was originally published on The Legal Satyricon.