Travelers' Laptops May Be Detained At Border

By now you probably have already heard about this: The U.S. Govt. implemented some time ago a policy of violating your privacy rights at the border.

Historically, the jurisprudence in the U.S. said that the various police departments had the right to look at devices with small memories. The idea was based on the right established in the days of paper phone books and agendas. If you were stopped many years ago and found to be carrying a small paper telephone book, the police had the right to look at the pages. If they found some interesting information in those pages, they had the right to take notes. Based on this notion, the courts in the U.S. held for many years that small electronic agendas with limited amounts of memory could also be looked at by various police departments. However, it was held that devices with larger memories were protected and required a court order before they could be searched.

The new policy has been in effect at U.S. border crossings for many months now:

Federal agents may take a traveler's laptop or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

Source: The Washington Post

The date mentioned above, July 16th, is the date the policy was disclosed - not the date the policy went into effect. It was disclosed because of public interest generated by a large number of news reports, in recent months, concerning notebooks that were held at the border. In some cases the owner of the notebook was asked to wait while a border agent browsed the contents of the hard disk. In other cases the notebook was confiscated and held for some weeks. In general, no reason was given for the search.

It should be noted that we lose most of our rights as citizens in North America during the few minutes that we spend at the border when we travel. Border policing agencies are allowed to implement policy decisions on their own. Politicians can create laws to direct the policies of these agencies but they do not have any opportunity to discuss policy changes before they are implemented. And, historically, courts tend to uphold the authority of those agencies when they are sued by irate citizens (as happens from time to time.)

U.S. Senator Russ Feingold made a statement concerning “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel” at a recent hearing of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights. Here is a quote from that statement:

“Ultimately, though, the question is not how the courts decide to apply the Fourth Amendment in these uncharted waters. I guarantee you this: neither the drafters of the Fourth Amendment, nor the Supreme Court when it crafted the ‘border search exception,’ ever dreamed that tens of thousands of Americans would cross the border every day, carrying with them the equivalent of a full library of their most personal information. Ideally, Fourth Amendment jurisprudence would evolve to protect Americans’ privacy in this once unfathomable situation. But if the courts can’t offer that protection, then that responsibility falls to Congress. Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicionless searches of Americans’ laptops and similar devices go too far. Congress should not allow this gross violation of privacy.

Source: U.S. Senator Russ Feingold

(As always, click on the Source link in the bottom-right corner of the quote to visit the original document and read the full text of the remarks.)

There have been two major responses from experts as a result of this new policy:

  1. Lawyers are now recommending that you keep all important information - especially trade secrets, important documents, internal company records - on your servers at the office. Virtually all hotels and motels these days offer Wifi and Ethernet (wired) internet access. Business class hotel rooms tend to include this service at no extra charge. Therefore, you can go almost anywhere in the world and use your company VPN to access your files rather than carrying them with you.

    Note that it can be very difficult to prove that you own legally an MP3 file. Even if you downloaded the file from Apple's iTunes web site or a service like eMusic.com that tracks the mp3's that you have purchased - you can't really prove that you purchased the files without internet access and you might not be able to get access when you are asked about the files found on your hard disk. Therefore, be careful about, or try to avoid altogether, carrying downloaded files with you when you travel. Again, you can count on using web-based storage for this purpose. There are several companies that offer this service.

    Of course, you can always get a small network installed in your home so that you can access your files through your own VPN while you are on the road. (Contact BNT Solutions for a quote if you would like a VPN installed at work or at home.)

  2. Several companies offer hard disk encryption software that renders your computer entirely useless to anybody who does not have the necessary pass phrase. Border agents from many countries can confiscate your notebook but many countries do not require you to divulge your pass phrase if the hard disk is encrypted. Remember that, once you leave the border, your rights as a citizen kick-in again. You may be able to ask a judge to order the border agency to show cause for their actions - though this may not do much for you in practical terms.

    Note that using encryption software does not allow you to get away with storing illegal files on your hard disk. The police can always, if they decide they want to, take the time and make the effort to decrypt the hard disk. Once they decide to try - they will eventually succeed.

    That being said, encrypting your hard disk can provide an entirely reasonable measure of privacy. Business or personal information that you deem important enough to carry but want to protect from the eyes of strangers will be considerably safer once it's encrypted - especially if your notebook is outright stolen.

Tracking your Notebook

Once somebody - anybody - gets hold of your notebook, you will be curious to know where it is, right? Well, believe it or not, there are now several software packages available that will automatically phone home whenever the notebook is connected to the internet. Some of these packages will even take pictures of the person sitting in front of your notebook. The internal camera installed on many recent models can be used to send home pictures of the person using your computer each time the notebook boots.

In the event that your notebook is stolen, such software makes it possible to retrieve it. You need only file a complaint with the police, providing them with the IP address, date and time (and photo, if available,) that was sent by the notebook when it booted. Using this information, the police can ask the internet service provider to give them the address where the service is provided and the name of the person who pays for the service - which goes a long way towards helping them retrieve the notebook.

One such service is Adeona, an open source software package and free service from Washington State University.

Additional Links

Here are some more quotes and links regarding the recent disclosure. Click on the Source link at the bottom-right of each quote to visit the linked article:

For several years, U.S. officials have been searching and seizing laptops, digital cameras, cellphones and other electronic devices at the border with few publicly released details.

Complaints from travelers and privacy advocates have spurred some lawmakers to fight the U.S. Customs policy and to consider sponsoring legislation that would sharply limit the practice.

Source: L.A. Times

In opening the 25 June hearing of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights, subcommittee chair Sen. Russell Feingold (D-Wisc.) said, "Over the last two years, reports have surfaced that customs agents have been asking U.S. citizens to turn over their cell phones or give them the passwords to their laptops. The travelers have been given a choice between complying with the request or being kept out of their own country. They have been forced to wait for hours while customs agents reviewed and sometimes copied the contents of the electronic devices. In some cases, the laptops or cell phones were confiscated and returned weeks or even months later, with no explanation.

The Bush administration "has argued in court that a laptop can be searched without any suspicion because it is no different from any other 'closed' container," Feingold continued. "I find that argument disingenuous, to say the least."

Source: The Transnational