DHS Reveals Some Data On Border Laptop Searches

from the was-that-so-tough? dept

The Department of Homeland Security has pushed hard for the past few years to make sure it retains the right to search your laptop at the border with no real limitations. It is, indeed, (as defenders of this policy always like to point out) established law that the border is not in the country, so Constitutional 4th Amendment rights do not apply. That still doesn't make it right. I, like many others, would not have a problem with searches due to probable cause. Nor do we have any real problem with searches of physical luggage at the border. But a blank slate, seems like a bit much -- for a few reasons. First, the purpose of a border search is to see what you're bringing into the country. But, when it comes to digital data, no one's bringing it across the border to get it into the country. You could just send it over any number of internet protocols to get it into the country without using a laptop. So, the very rationale doesn't make sense. Second, when people travel, they specifically pick and choose what physical goods to put into their luggage. With a computer, the situation is the opposite. You automatically bring everything (including, potentially access to remote drives).

Still, DHS has insisted it wants to keep this right, even as some politicians have looked to protect against laptop searches at the border. Earlier this year, DHS put out slightly clearer rules, but which still allowed for no probable cause in doing a search.

One big question hanging over all of this, however, was how often such searches took place. Thomas O'Toole alerts us to a new DHS report that finally reveals the numbers -- and, it's at least marginally good news: these sorts of searches happen very rarely. That's a good thing and suggests that the policy isn't widely abused:
Of the more than 144 million travelers that arrived at U.S. ports of entry between Oct. 1, 2008 and May 5, 2009, searches of electronic media were conducted on 1,947 of them, the DHS said.

Of this number, 696 searches were performed on laptop computers, the DHS said. Even here, not all of the laptops received an "in-depth" search of the device, the report states. A search sometimes may have been as simple as turning on a device to ensure that it was what it purported to be. U.S. Customs and Border Protection agents conducted "in-depth" searches on 40 laptops, but the report did not describe what an in-depth search entailed.
I'm certainly happy to see that such a policy is used so rarely, but I still question why it should be used at all.


Reader Comments (rss)

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    AG (profile), Sep 28th, 2009 @ 1:58pm

    Any idea as to how many travelers actually carried laptops / electronics? Comparing that number (rather than a blanket 144 million number) to the number of searches might make this look very different....

     

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    Alan Gerow (profile), Sep 28th, 2009 @ 2:51pm

    Yes, but can you image how many lives would have been saved 8 years ago if they had done in-depth laptop searches on 100% of laptops!

    Oh, they didn't use laptops on the planes to hijack the flights on 9/11.

    So, um, 0.

     

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    Dark Helmet (profile), Sep 28th, 2009 @ 2:54pm

    Wouldn't it be far more productive...

    ...in terms of securing our country to search w/o prejudice the laptops of our elected and unelected officials?

    Lord knows you'd end up catching a hell of lot more criminals....

     

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    weneedhelp (profile), Sep 28th, 2009 @ 2:59pm

    Used so rarely?

    "I'm certainly happy to see that such a policy is used so rarely"
    Dont you mean reported so rarely?

    "a new DHS report"
    Trusting the fox to watch the hen house?

    Trust us. We wouldn't lie. Nah, dont think so.

    From the ppl that brought you "we could have never imagined them using planes..."

    and

    "we dont want the smoking gun to be a nuclear cloud."

     

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      Matthew Krum, Sep 28th, 2009 @ 3:13pm

      Re: Used so rarely?

      I agree.
      So perhaps we need some third party data/analysis? Like, DHSsearchedMyLaptop.org where users can anonymously report the date & time they were searched at the border & how in depth it was. Many people probably wouldn't want to post on such a site and there'd be a margin of error, but it's not the 'fox's' data. Just a suggestion.

       

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      Matthew Krum (profile), Sep 28th, 2009 @ 5:02pm

      Re: Used so rarely?

      I agree.
      So perhaps we need some third party data/analysis? Like, DHSsearchedMyLaptop.org where users can anonymously report the date & time they were searched at the border & how in depth it was. Many people probably wouldn't want to post on such a site and there'd be a margin of error, but it's not the 'fox's' data. Just a suggestion.

       

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      Anonymous Coward, Sep 29th, 2009 @ 10:04am

      Re: Used so rarely?

      I had the lens of a video camera damaged because an inspector felt the need to poke it to check it was actually a camera and not my method of smuggling something onto the plane.
      So, too, I have been required to turn on my laptop.
      As a little old lady, I don't look like any previous ne'er-do-wells, so it must be a common thing to ask, and I bet this action is rarely reported. I am surprised it showed up in the report and the fact that it did makes me suspicious about the quality of the data.

       

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    Reglan Side Effects Lawsuit, Sep 28th, 2009 @ 3:21pm

    Interesting

    It's nice to know that the policy "isn't abused", but it still seems to be a bit much. It's strange to think that you forfeit your rights just because you happen to be at the border.

     

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      DJ (profile), Sep 28th, 2009 @ 4:07pm

      Re: Interesting

      "It's strange to think that you forfeit your rights just because you happen to be at the border."

      Umm, dude? You do realize that "your rights" ONLY apply in this country, right? Now, I don't feel I have enough information on this topic to decide how I feel about it, one way or t'other, but I do know that no one just HAPPENS to be at the border. It's not an accident.

      Also, this is sort of the flip-side of an argument I've used before "The US Constitution ONLY applies to US citizens." I say it's the flip-side because it also ONLY applies INSIDE US Sovereign territory (embassies, military facilities, etc.). Once you leave US "soil", you are now subject to that country's laws and/or international law, which doesn't necessarily follow US law.

       

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        Dark Helmet (profile), Sep 28th, 2009 @ 4:37pm

        Re: Re: Interesting

        "I do know that no one just HAPPENS to be at the border. It's not an accident."

        Friend, I can personally assure you that you are wrong on that one....

        "Once you leave US "soil", you are now subject to that country's laws and/or international law, which doesn't necessarily follow US law."

        A fantastic point, except that if the ultimate US law is not in effect, then the US government authorities can kindly fuck the fuck off....

         

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          Shawn (profile), Sep 28th, 2009 @ 8:12pm

          Re: Re: Re: Interesting

          The only problem is while they are kindly fucking off, they are denying you entrance into the US. You want in you have to follow their rules. Well at least until you finally rise to power and redo that. (after the execution of the lobbyists please)

           

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            Dark Helmet (profile), Sep 29th, 2009 @ 2:53pm

            Re: Re: Re: Re: Interesting

            "The only problem is while they are kindly fucking off, they are denying you entrance into the US. You want in you have to follow their rules. Well at least until you finally rise to power and redo that. (after the execution of the lobbyists please)"

            You're right, but that's exactly the point. If they want to keep me from crossing into the States, they can. They SHOULD, if I won't comply with their rules.

            But US authorities ought not be able to subject me to searches except on US grounds, in which I gain all kinds of rights as a US citizen.

            This nationless border nonsense is simply a goverment end around of civil liberties.

             

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          Anonymous Coward, Dec 1st, 2009 @ 4:56pm

          Re: Re: Re: Interesting

          Except that the US authorities are standing right there, with guns.

          Government: The legal right to commit violence. Why does everyone keep forgetting this?

           

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        btr1701 (profile), Sep 29th, 2009 @ 1:05pm

        Re: Re: Interesting

        > Umm, dude? You do realize that "your rights"
        > ONLY apply in this country, right?

        Ummm, dude, no they don't. They apply worldwide vis-a-vis US citizens and the US government.

        While it's true that the French government, for example, doesn't have to respect my consitutional rights when I'm in France, the US government most certainly does. If I'm a US citizen, the US government must respect my rights EVERYWHERE. US officials from the US Embassy in France can't legally search my apartment in France without a warrant any more than they could search my apartment in Chicago. If they did so, any evidence they found against me would be suppressed, unless I were being tried in a French court by the French government.

        Read the actual 4th Amendment. Nowhere in it does it say that citizens are only free from unreasonable warrantless searches and seizures by the US government if they're within the borders of the USA. Nor does it suspend 4th Amendment protections *at* those borders.

        This search policy by Customs is in direct contradiction of the plain text of the Constitution and unfortunately the courts have willingly gone along with it because it's more convenient than actually following the law.

         

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          Wise one, Sep 29th, 2009 @ 10:35pm

          Re: Re: Re: Interesting

          The whole bunch of you are effectively overlooking the word "unreasonable" in the Fourth Amendment and, as the SCUS has correctly ruled, customs searches of people and their belongings at borders are NOT unreasonable.

          Incidentally, these searches have been going on long before any terrorists were invented, other than gov't mental and emotional terrorists. Obviously they're not intended to catch terrorists.

          VRP

           

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            btr1701 (profile), Sep 30th, 2009 @ 5:10am

            Re: Re: Re: Re: Interesting

            > The whole bunch of you are effectively
            > overlooking the word "unreasonable" in the
            > Fourth Amendment

            No we're not overlooking anything. We're saying that nothing in the 4th Amendment makes a reasonable search out of what is an unreasonable search everywhere else, just because it happens at the border.

            > the SCUS has correctly ruled, customs searches of
            > people and their belongings at borders are NOT
            > unreasonable.

            Yes, it has ruled that way but it wasn't correct in doing so as the ruling is supported by nothing in the Constitution itself nor in the writings of the Founders. It's a ruling invented out of thin air by a Court that was more interested in the convenience of the government than the rights of the citizens.

             

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    Irate Pirate, Sep 28th, 2009 @ 3:25pm

    TrueCrypt to the rescue!

     

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      Alan Gerow (profile), Sep 28th, 2009 @ 4:00pm

      Re:

      Does the Crypt Keeper pop up and laugh maniacally when border guards try to search the laptop. Because that would be awesome.

       

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        Dark Helmet (profile), Sep 28th, 2009 @ 4:34pm

        Re: Re:

        "Does the Crypt Keeper pop up and laugh maniacally when border guards try to search the laptop. Because that would be awesome."

        And then it violently hurls a Dennis Miller at the offender, which is by far the worst punishment one can imagine....

         

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      AG (profile), Sep 28th, 2009 @ 4:44pm

      Re:

      I've heard cases where the mere presence of encryption software like TrueCrypt and Bitlocker was considered grounds for a search, since you wouldn't encrypt anything you didn't want to hide, would you?

       

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        Anonymous Coward, Sep 28th, 2009 @ 8:54pm

        Re: Re:

        that's why you use use a hidden OS. Keep some financial spreadsheets in the outer volume.

        personally, i keep my secure data on an encrypted fob that travels apart from the computer, with misleading filenames, of a pattern I understand, so that on the computer any filename histories make sense and give nothing away.

        something is a secret if only *you* know it.

         

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          Hephaestus (profile), Sep 29th, 2009 @ 6:11am

          Re: Re: Re:

          just zip it dump the data to a cellphones micro sd card and name it MomsBirthdayParty.avi .... officer .... dont know why that movie doesn't run, the cell phone has been acting weird as of late... with 16 gig of space on the new micro SD's thats alot of storage.....

          The point is moot anyway because you can just dump the data to goggle, or another account.

           

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        John Doe, Sep 29th, 2009 @ 4:32am

        Re: Re:

        What about the business traveler? My company laptop has PointSec software to encrypt the entire drive. Companies don't want code, spreadsheet, contact info, etc getting into competitors hands. So there are plenty of good reasons to encrypt besides terrorism.

         

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    Bryan, Sep 28th, 2009 @ 4:07pm

    Laws and borders

    If it's true that the highest law in the US (the constitution) doesn't apply outside the borders, then how can any lower-level laws possibly apply? Given that logic, the border patrol has no power whatsoever outside those actual borders.

     

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      DJ (profile), Sep 28th, 2009 @ 4:10pm

      Re: Laws and borders

      Right, that's where international law takes over. In the case of the US/Mexico border, I think there were some mutual agreements between the two countries as to what laws should be followed....which I'm sure just ends up being primarily US law, which, IMHO is wrong.

       

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    Matthew Krum (profile), Sep 28th, 2009 @ 5:26pm

    Re: @ DJ

    Sorry about the double post. What I meant to say @DJ, you are correct. I should have mentioned that anyone that had crossed the border could post anonymously and then on the questionaire, it would ask if you had a laptop and did DHS search it. I personally disagree w/ DHS on this, however, because I don't view it as helping prevent any attacks other than checking to see if the device can operate so they know it's not a 'netbook shaped' chunk of C4 or something similarly dangerous. If an attacker or terrorist was sofisticated enough to coordinate an attack on the U.S, why would they risk bringing physical data across the border when they can access it remotely (as stated in the article) from a free hotspot once here?
    Seems like they should spend more time searching toolboxes & confiscating box-cutters IMO.

     

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    Anonymous Coward, Sep 28th, 2009 @ 5:37pm

    I thought the language of the Bill of Rights was fairly clear, but I guess the people in our government have trouble comprehending it:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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."

    Its not listing rights, its listing what the government may *not* do. This piece of text doesn't apply to us (by giving rights, though it does acknowledge them), it applies to the US government, in whatever action the government takes, and wherever it takes that action. Just because such and such a place is considered outside of US territories doesn't mean the government doesn't have to abide by the US laws.

    Of course, apparently everyone wants to stop their ears and creatively reinterpret the highest law in the US...

     

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    ..., Sep 28th, 2009 @ 6:34pm

    How wide is “the border”?

     

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    Drew (profile), Sep 28th, 2009 @ 8:46pm

    I'm confused here...

    A border of a picture frame has width, however when two countries border one another there is no 'magical' zone that exists in neither country. So if I am in Canada and I approach the U.S. then the laws of Canada apply until I step foot on U.S. soil; this means that if I am still in Canada the laws that allow U.S. agents to search me do not apply, or if I am in the U.S. then all the protections of the Constitution and laws apply. There is no gray area, regardless of what agents may believe. What Supreme Court cases have been tried that allows for the extreme powers granted to border agents?

     

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    Tor (profile), Sep 28th, 2009 @ 11:38pm

    What's the purpose?

    Why do these rules feel more well suited for industrial spionage than for stopping bad people?

     

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    Bradley Stewart, Sep 29th, 2009 @ 2:38am

    Here Is a Tip That I Received

    a few decades ago from a Boarder Patrol Agent. I was sitting in a bar having a few drinks and chatting it up with a great looking girl sitting on the stool next to me in a bar who when the subject came up she told me what she did for a living. I asked her what the surest way to smuggle something across a boarder.She explained to me the surest way to smuggle something across a boarder is to dress up like a middle aged Jewish couple. Boarder Inspectors never bothered them at all. I queried though I am Jewish by birth that when I travel I almost always travel alone. She thought for a moment and then said. Hmm! That will take a more elaborate disguise.

     

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    techflaws.org (profile), Sep 29th, 2009 @ 2:50am

    It's all Security Theater

     

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    John Doe, Sep 29th, 2009 @ 4:24am

    True Crypt

    Use True Crypt or similar program to encrypt a file or volume and DHS won't find anything. I imagine the terrorists know about these programs and can hide something if they wanted to. So yet again we give up our rights on the off chance we catch a terrorist.

     

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    Whisk33, Sep 29th, 2009 @ 6:24am

    Device Verification

    It seems that 64% of the searches didn't even involve a laptop (though they could have be computer like devices). Is it "wrong" to verify that a device is what it purported to be? If it qualifies as a search to simply turn the device on and confirm it works, how does that differ from looking at physical tangible goods? It seems that there are some here that see the Laptop completely out of jurisdiction. But Verifying a laptop is a laptop seems reasonable.
    Checking which files you have etc. seems to over step the requirements.

     

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    MCR, Sep 29th, 2009 @ 7:27am

    Not Trained

    I'm pretty sure DHS doesn't have enough trained people to perform in depth laptop searches at every apoirt, let alone every passenger with a laptop.

    It's not currently an issue because of this. However, if DHS is able to develop some sort of tool that does all the work for the agents, it could easily lead to a widespread problem. Best to nip it in the bud now.

     

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    Lonzo5 (profile), Sep 29th, 2009 @ 9:52am

    National Security

    I'd imagine federal agents will be immune to such laws in order to protect "sensitive materials" in the name of "national security". Disturbingly typical.

     

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    anymouse (profile), Sep 29th, 2009 @ 2:50pm

    Welcome to the future.....

    Border Agent: Welcome to the US, we don't have time to actually search your laptop, but since we can, we are now using 'Super Snooper Bot V3.0427-beta', we'll just drop it on your laptop, and it will do the searching for us and send us anything it thinks we might be interested in seeing (your bank accounts, personal info, risky photos, personal pictures, etc). If you have any questions just check our website.

    I'm not saying that it's going to happen, but when it does don't be too surprised. Power Corrupts, Absolute Power Corrupts Absolutely (there is a reason the saying exists).

     

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