law

A legal question

The news yesterday that Bishop Raymond Lahey was discovered in possession of child pornography at the Ottawa airport during a “random” search of his laptop raises a question that probably has an already-established answer.

Up front I’ll state that I don’t believe for a minute this was a “random” search at all, it seems way too convenient.

For the sake of argument, let’s pretend I’m right – he was identified in a child pornography sting or through download activity or whatnot; let’s say the police had reason to believe that he was in possession of kiddie porn. Normally, the police would have to go through the effort of providing justification to a judge in order to get a search warrant. (At least that’s what they do on TV.)

However, a border patrol officer requires no such warrant to search your person, thus providing an ideal opportunity for a warrantless search of personal property.

My question is this – with the recent efforts to round up the purveyors of kiddie porn and the perverts who jack to it, is there communication between border patrol and police agencies? And if so, is evidence provided through border searches usable in a court?

If this was truly a random search of a laptop there would be no question that it would be usable as evidence like any other contraband discovered in such searches. However, if the police are in contact with border agencies to “watch out for” certain individuals, does this create a situation where the authorities are in reality performing illegal warrantless searches?

I don’t mean to defend this guy – he’s everything a father of two young girls loathes and would love to see locked up – a pedophile and religious. I’d just rather our employees (the government) keep our personal rights in mind when performing their work.

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25 thoughts on “A legal question

  1. As near as I can figure out from doing some web searches, that’s a gray area legally, Kev. I have no doubt that you’re right in saying there may have been collaboration but the difficulty would be in proving it, since I’m sure it was done via a phone call.

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  2. It is illegal to bring child pornography into the country and border officers have every right to search for illegal contraband, especially when they have reason to believe it is being brought into the country.

    There would be no need to pretend the search was random if they had reason to believe the contraband was being smuggled in – no different than if they had a reliable tip that he was smuggling drugs or firearms into the country.

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  3. Looking around some more, I’m with rww – there’s plenty of legal precedent to say that border guards have the right to search laptops, the only reason they don’t search *every* laptop is a pure matter of convenience.

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  4. I’m not arguing whether or not they had the right to search his laptop *or* the right to confiscate illegal materials and press charges – those are indisputable points. My question is whether he was set up by the cops. If so, the search might well be deemed illegal because it could be argued to be done as part of a criminal investigation, which would require a warrant.

    I have been through airports with a laptop perhaps a hundred times in the last ten years and I’ve been asked to turn it on periodically, but never, not once, have it been searched. It’s just curious, that’s all.

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  5. I share Kevvy’s experience, having travelled with a notebook computer fairly frequently. I was in transit just this week, in fact – on the way to Toronto (City Centre Airport) from Halifax (my original destination in Ontario on Sunday), laptop opened and swabbed, not turned on. Toronto (again, City Centre) to Ottawa , scanned, not swabbed, not opened. Ottawa to Halifax (yesterday evening at about 3 pm ET), scanned, not swabbed, not opened. Interestingly, the security agency at the Ottawa airport can’t send you to a particular line anymore to be checked – there is a pilot project of a random sorting procedure underway. As to whether it was in operation at the time of the bishop’s ‘capture’, I cannot say.
    None of this argues against the interpretation you provided – merely some observations. I may just not look ‘bishop-y’ enough to warrant a search. Thank goodness for that.
    And, by the way, Air Porter rocks. Just sayin’.

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  6. Well, granted this is a U.S. court decision:

    http://www.wired.com/threatlevel/2008/04/border-agents-c/

    But the short, simple answer would seem to be yes, Border guards can check your computer anytime they want. There does seem to be a gray area if you’ve actually taken steps to encrypt the info, though. Furthermore, there’s the issue of consent – if the border guards asked him ‘can we check your computer?’ and he agreed to it, than warrants or no warrants, collusion or no collusion, anything they find there is usable against him

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  7. I’ve had similar experiences to both you and Flash when it comes to traveling with laptops – sometimes they swab it and turn it on, sometimes they just swab it, and sometimes they just let it go. Unless the bishop’s lawyer can provide a videotape of the cops whispering in the guards’ ear and pointing at the bishop, I don’t see any way of proving an illegal search.

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  8. I will, however point out that I got patted down the last time I flew out of Halifax – either I look bishop-y or I look Middle-Eastern…

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  9. Something else is going on here.

    Firstly, I live in Ottawa and go through the airport security there at least 2 times a month – usually more. What with line-ups and such, I have never (and I mean NEVER) seen someone have their laptop searched.

    Its not like they turned it on and POOF, kiddie pron in popups on Monsignor’s desktop.

    There is simply no way that the CATSA goons at Ottawa airport were going to do a laptop search without reasonable and probable grounds that they would find something. A laptop search is not the same as a pat down or even the rubber glove treatment – it takes too long and is too arduous to be conducted randomly on a population of people who are, for the most part, business people going through security less than an hour before their connecting flight. As a Security Engineer, trust me when I tell you such a search could take hours, if truly random, and require the correct tools. None of the folks on the line at YOW have that kind of training or talent.

    That means he was purposely sent to a secondary area where an IT security expert was waiting with the correct software and equipment to scan his laptop.

    Sorry, they were waiting for him. Why are they calling it a ‘random search’? Well, perhaps they just want to use this as a reason to keep up random searches (“see they work!”) and the power that goes with that. Maybe they got the information from a CI whose identity they still wish to protect.

    Now it is possible he was profiled and purposely selected for closer inspection without prior knowledge (he is a Catholic clergyman, after all…that just screams pedo these days). But I doubt it very much.

    CATSA just doesn’t do this kind of highly intrusive and specialized searching randomly.

    FWIW

    I’m not arguing whether or not they had the right to search his laptop

    I would.

    CATSA nor any other agent of the state should be allowed this kind of intrusive ability to violate your person or property without having a warrant and very strong evidence they will find something. And they had better be prepared to be sued for damages if they are wrong. I don’t care what the law says, if challenged, I do not think it would survive a Charter challenge (neither section 2 nor section 8. No amount of hand-wringing about paedophilia or terrorism should change that.

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  10. Thanks, Mike. I have my doubts about the legality of the search, as you can tell from the post. I’d like to see this guy roast, and I really, really hope that he believes in hell. That said, I don’t want the cops to be able to use security scares and the resulting security goon tactics we see in airports and the borders as an end-run around our rights to be free of illegal searches.

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  11. Yeah, I see that from the post, its just that in the comments I see a softening of the position a bit…

    😉

    I’d love to see this guy strung up for a number of reasons, but not if it means some Algonquin College drop out has the power to stick a latex clad finger in my ass and destroy my life because its a slow day and he or she wants to be Rambo or Walker Texas Ranger…

    Nope, I’d rather the bastard go free than lose my freedom. He’ll get caught again, eventually.

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  12. Being the father of two little girls, I get an immediate “hang the bastard by his balls” nervous twitch when the topic of child porn comes up, so if you’re sensing anything it’s that.

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  13. As the friend of a father of two little girls, and a ‘sorta’ dad to a little boy, I think a gunshot to the head would be too gentle for my tastes.

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  14. Found this off the Globe and Mail website:

    http://www.theglobeandmail.com/news/technology/laptops-fair-game-for-border-searches/article1308805/

    So, according to the Canada Customs Act, laptops and other electronic devices can be searched by Customs Agents, if the owner meets some measure of suspician, given that the CBC is reporting that there were allegations dating back 20 years, I think it’s safe to say that Bishop Lahey qualifies.

    Would it survive a Charter Challenge, well the Canada Customs Act already has:

    http://csc.lexum.umontreal.ca/en/1988/1988rcs2-495/1988rcs2-495.html

    If you have any evidence to the contrary, Mike, I’d appreciate it if you could provide a cite, otherwise I’ll take the Supreme Court of Canada as a superior source for a legal opinion over someone whose profile simply says ‘Software Engineer’ – no offense.

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    1. That’s a slightly different case, though, Dan. In that case, there was evidence given by the Customs officials that something was amiss – an anxious traveller without a job and no ID. In this case it looks like any suspicions the Customs officials had would likely have to have come from outside information – that’s the part that troubles me. As Mike says, laptops don’t get searched “randomly”, otherwise airport travel would grind to a halt.

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  15. Dan,

    f the owner meets some measure of suspician,(sic)

    And those of us Software Engineers\IT Security Engineers who also happen to have an BA (Hons) in Law-Crim from Carleton University usually call that “reasonable and probable grounds”. Random intrusive searches do not meet this standard, as was indicated by the very Supreme Court case you cite:

    “There were ample facts to support the customs officer’s suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally.” {emphasis mine}

    In other words, such searches are legal and justifiable if the meet the legal standard for “reasonable and probable grounds”, but NOT random searches. I am anxiously awaiting a truly random search to be challenged.

    Ahem.

    Of course, we are shouting past each other here. The story said he was caught in a random search and I think we have both shown evidence that that is very likely not the case – you presented the obvious legal grounds to show that they probably had the “reasonable suspicion” and me to show that they wouldn’t practically waste time with such an intrusive search unless they knew they were likely to get something.

    Why they are telling the media it was a “random search” is a mystery, but I suspect my hypotheses above are most likely (I have a buddy from my Carleton days that works at YOW, I’ll ask him)

    Also on a much more practical level, random searches of ANY kind actually make us less safe, not more. They are “security theatre” in that they make the hapless rubes feel better (the travelling public) but do nothing to actually make us more secure. Indeed, by wasting all the time and resources doing random searches, they have less time and resources to actually recognize or concentrate on real threats. Meaning we are less safe. The resulting complacency (thinking your are more safe when you are less safe) is a recipe for disaster.

    I recommend reading security guru Bruce Schneier on the subject.

    And really no offence taken. Honest. 😉

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  16. Well, judging from this story, Kev – you can rest easy:

    http://www.cbc.ca/canada/ottawa/story/2009/10/08/ns-lahey-documents.html

    since it looks like:

    a. they *did* have a warrant to search the laptop; and

    b. it wasn’t as the result of collusion, he displayed some suspicious behavior – really, the evasiveness when asked about whether he was carrying a laptop would have set off alarm bells…

    As to why it was initially described as a random search, when in fact it was nothing of the sort, two ideas:

    a. it’s entirely possible that the reporters who first ran with the story took the explanation of ‘we use a variety of indices to determine when someone is subjected to a secondary, more intrusive search’ and simplified it to ‘random search’ – wouldn’t be the first time a reporter’s changed the details of a story, and probably it’s not going to be the last.

    b. or, the cops might be describing it as a random search because they don’t want to give pedophiles any ideas on what kind of things they can do to avoid being checked – while I totally support the public’s right to know, I’d hate to think we were making it harder to catch the next guy going through customs…

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  17. Dan,

    Well that wasn’t a “random” search – he was targeted because of his behaviour, which is the correct way to do this. (it also caught Ahmed Ressam in Washingtom in 1999)

    The beauty of this kind of behavioural profiling is that it relies on autonomic responses, so you can tell the bad guys in fine detail how you are going to catch them and it doesn’t mater – they can’t consciously control these physiological reactions.

    The beauty of this kind of profiling is that it works with peopophiles, drug smugglers (ignoring that drugs should be legal), terrorist and anyone else looking to do bad things.

    Making everyone line up and take their shoes off is still silly and useless and this kinda proves that point – What if that agent had been too busy searching my wife’s luggage due to a ‘random’ indicator to notice Lahey or have time to question him? How many other bad guys get away with stuff everyday because of this kind of distraction?

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