Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion

from the 4th-amendment? dept

For a while now, courts have said that you have no 4th Amendment rights at the border, and border patrol/customs officials have every right to search your laptop. For a variety of reasons, this is problematic. As we’ve explained before, the contents of your laptop aren’t the same as the contents of your suitcase in two very important ways:

  1. You mostly store everything on your laptop. So, unlike a suitcase that you’re bringing with you, it’s the opposite. You might specifically choose what to exclude, but you don’t really choose what to include. With a suitcase, you specifically choose what to include.
  2. The reason you bring the contents on your laptop over the border is because you’re bringing your laptop over the border. If you wanted the content of your laptop to go over the border you’d just send it using the internet. There are no “border guards” on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they’re not doing it by entering that country through border control.

Unfortunately, the courts don’t seem to take this into account. Also, a separate point that no one has yet answered for me yet: if you have a virtual drive mounted in the cloud somewhere (i.e., something like JungleDisk) can border patrol search that as well, even if it’s not actually on your computer that you have at the border?

Either way, this issue has received plenty of attention over the years, with some officials trying to change the law (without much success). Homeland Security initially claimed that there were basically no rules limiting what it could do. However, more recently, the new administration clarified the rules somewhat — though they’re still pretty free to search anyone’s laptop. But, one of the rules was that you were allowed to be present in the room while your laptop was being searched (though, you didn’t get to see what they were doing).

It seems one aspect of that was broken by a border patrol computer search that involved taking a guy’s broken computer to search it. The guy then sued, saying that the content on that laptop’s hard drive (which included child porn) was inadmissable, because the search occurred off-site. A court recently ruled that the guy was half right. It basically said that border patrol can’t just take laptops off-site for searches, but if there was reasonable suspicion to inspect the laptop, then it was okay. In this case, because some child porn had already been found on another laptop the guy had, it was deemed that taking the broken laptop off-site was reasonable.

That logic definitely makes sense, but I’m still wondering why we’re using border patrol resources for this kind of thing? Yes, cracking down on child porn and the like is important, but that’s got nothing to do with securing the border. If anything you wonder if this kind of thing becomes a distraction?

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Comments on “Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion”

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57 Comments
bob says:

Re: Re:

If you use windows, that is a moot point, pull out the old GNU/Linux password changing disk and presto instant access.
Password bios? Built in bypass.

True Crypt is your only defense.

But you will still die in jail if the feds want to push the matter.

Liberty is lost.
Freedom is dying.
Get used to your chains.
When 2/3 of a people do not want a thing and the so called representatives still pass it, what you have is authoritarian government.

chris (profile) says:

Re: Re: Re:

True Crypt is your only defense.

http://www.truecrypt.org/docs/?s=hidden-volume

put your neutron bomb plans and hezbollah email on one volume and naked pictures of yourself and gay porn on the other.

put up a fuss about 4th amendment rights and calling your lawyer, and when they start talking about imprisonment or water boarding, give them the key for the volume with the porn on it.

easy peasy.

Michael Wigle (profile) says:

Re: Re:

I believe they can. It would be similar to requiring you to provide keys to a suitcase. Of course, if you refuse, my understanding is that you not only get in trouble but they’ll just take the laptop off-site to be worked on more thoroughly.

Best solution is probably a hidden True Crypt drive. I highly doubt most of these folks could find one and if what is visible is mundane there would be no reason to look hard. Of course, that’s assuming you are not actually smuggling something illegal on the laptop and just want to keep your personal or coporate data private.

If you are smuggling illegal content across a border on a laptop, well, you’re just not very smart.

chris (profile) says:

Re: Re: Re:

Best solution is probably a hidden True Crypt drive. I highly doubt most of these folks could find one and if what is visible is mundane there would be no reason to look hard.

a hidden volume still looks like an encrypted volume, it just has two keys: one for the “regular” volume and one for the “hidden” one.

the point of the hidden volume is to keep your “real” data hidden when forced to decrypt the volume. as in someone puts a gun to your head and says give me the key, you hand over the key that unlocks the “fake” data.

Jake (user link) says:

Re: Re:

This reminds me of a conversation I once had with my father, who was griping mildly about his laptop being inspected by Customs officials before boarding a flight to Belfast. This was back in the days when laptop casings could accommodate a couple of sticks of dynamite, or a handgun, and you had to demonstrate that it’d boot or they’d take it apart to make sure it wasn’t holding either.

I initially assumed they were looking for IRA propaganda, but he told me not to be an idiot.

Anonymous Coward says:

by Edwinem

Quick Question:
If your laptop is password protected are they allowed to force you to hand over the password?

That’s an excellent question! And continuing with passwords, what about people who use encryption (i.e. TrueCrypt) and use virtual drives, and are they obligated to declare that they use such technology? And corporate laptops? Imagine a company employee using a business laptop with all sorts of sensitive private data and I don’t think that if some of this info where to be shared/sold if viewed would be good for business.

When does this start / finish?

Anonymous Coward says:

Re: Re: Re:

After all, the government exists to serve the corporations and the reason for these searches is because the corporations want to take one step further in controlling information flow. Not just piracy, information flow and competing media in general, but this control is an incremental process, just like the control that they pretty much already have outside the Internet in terms of public airwaves and cable infrastructure and how the important issues and news here on techdirt are never presented or if they are only one side is presented despite the fact that the side that is presented is almost indefensible and the opposing side is evidenced based and very logically defensible (they know that the position the mainstream media takes is very unconvincing and that without extreme brainwashing the public would be even more furious about how corporations unfairly control the legal system).

another mike (profile) says:

Re: Re:

You’d let employees out the door with critically sensitive “we’re so boned if this leaks” data on their laptops? I’d keep all the data locked up on the server and have the laptop running just a hypervisor for a read-only virtual machine set up as a thin client.
And now we’re back to the question of how far off the laptop can the border patrol look.

rorybaust (profile) says:

Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion

So for example if I have set up on my laptop a link to my home computer , they could then search that through access allowed as user on my laptop.

It seems that the courts have not put there life to a scrutiny that they expect others to endure.

chris (profile) says:

Re: Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion

So for example if I have set up on my laptop a link to my home computer , they could then search that through access allowed as user on my laptop.

i assumed that “off-site” meant sending your laptop to a forensics lab, not using the laptop to connect to resources which were not local to the laptop in question.

that is a pretty scary interpretation of the term “off-site”, i have to admit, and all the more reason to use a cheap machine to travel with that has little, if anything, stored on it, including stored passwords or history of any kind, or better yet, just not bother with carrying a laptop or media player over the border.

how does search and seizure work for shipping? could you just fed-ex your encrypted laptop to your destination and then fed-ex it back home when your trip is done?

vilain (profile) says:

Corporate vs. personal laptops

All this just means leave the personal laptop _and_ phone at home (that’s searchable and savable too). Period.

Use an in-country rental for whatever you need and sanitize it before you return it. I haven’t used an iPad, but if it can’t store stuff, then use it with remote storage for whatever you’d need a laptop for on a vacation.

Corporate execs must have sanitized corporate laptops for overseas work. IT would transfer what was “safe” to it prior to the trip. Anything company proprietary could be saved onto corporate servers to be accessed via VPN. If the Gustapo find porn on that laptop, that exec is toast anyway.

chris (profile) says:

Re: Corporate vs. personal laptops

Use an in-country rental for whatever you need and sanitize it before you return it. I haven’t used an iPad, but if it can’t store stuff, then use it with remote storage for whatever you’d need a laptop for on a vacation.

or just buy something cheap and toss it in the trash before you hit the border. prepaid mobiles and off lease laptops or cheap netbooks come to mind.

in the case of phones, call forwarding and unified messaging systems could keep disruption to a minimum.

an interesting device i have been meaning to check out is a safebook, which is basically a mobile version of a thin client, i.e. embedded system and little or no local storage.

of course this makes working/playing with digital stuff kind of difficult while en route unless you have carefully planned your trip around access to 3g data or wifi.

Anonymous Coward says:

“That logic definitely makes sense, but I’m still wondering why we’re using border patrol resources for this kind of thing? Yes, cracking down on child porn and the like is important, but that’s got nothing to do with securing the border. If anything you wonder if this kind of thing becomes a distraction? ” – the work of the border partol isnt just to ‘secure the border’ in the sense of keeping undesirable people out, but also to do what is possible to stop the flow of illegal goods. yes, digital goods can move by the internet (but are still subject to the law), but in presenting oneself at the border with a laptop, you have to accept what may occur. the issue isnt just child porn (it is a reporting buzz term), but also things like terrorist plans, or any other information that might confirm the suspicions of a border guard regarding someones intent on entering the country. they can search your bag, your wallet, your anus, so why can they not check your laptop? if checking the laptop requires that it is sent to an offsite facility, so be it. if you have nothing to hide, there isnt any issues, is there?

btr1701 (profile) says:

Re: Searches

> if you have nothing to hide, there isnt any issues, is there?

A lot of my fellow cops tend to parrot this idiotic cliche when the subject of searches comes up. I always ask them, suppose you pull me over on the side of the road and ask to search my car. When I refuse consent, you ask me, “If you’ve got nothing to hide, you shouldn’t mind me searching, right?”

What would you do if I replied, “Officer, I’ll give you consent to search my car only if afterward we can go to your home and you give me consent to search it as well. After all, if you have nothing to hide, you shouldn’t mind a total stranger going through all your personal financial files, looking at your internet search history and rifling through your wife’s panty drawer. Only people with something to hide would object to something like that, right?”

I usually get uncomfortable silence as a response.

Brian Hayes (user link) says:

War sucks

Pushing defense is rough. I wouldn’t wake up in the morning excited to search people. It’s a job for most but it’s a duty for all.

Sloppy is not good. Sloppy is too close to tyranny and we all know about that. What can we say to somebody with the right to peer into everything we own? I’d like a good calm answer that’s better than saying I’ll be rude or I’ll be silent!

Tough days. It’s not a blitz of fire hoses, but it’s a blitz nevertheless. We took Kings to the ground and damn iron weapons too. Now what are we supposed to do? Terror isn’t comic Hollywood. It’s a trillion here and a trillion there and it hurts and kills.

Weapons may never end weapons. Understanding might. But we will wait a long time for that.

In the meantime, let’s be sure our people respect us and treat us well. Let’s be sure we also give staff every chance to discover threats. That’s our policy. No?

Jesse says:

“If anything you wonder if this kind of thing becomes a distraction? “

Of course: first, border patrol has any and all authority to search you for the purpose of protecting the border. And then people fighting things unrelated to the border say, “Hey, we can’t randomly search people without warrants but I think those border guys can…would you mind?”

Simple enough.

PaulT (profile) says:

Security theatre, yet again. While one or two morons can be caught in this way, the time, money and expense do not justify it. it’s yet another attempt to make us feel “safe” while not doing anything to track down and stop real criminals – while removing more of all of our civil liberties and privacy. Want to go to a business meeting? You’re screwed if you’re “randomly” selected (look brown? Don’t bother booking that hotel!), while the real criminals will quickly learn not to take their laptops with them.

BP348 says:

Search of Laptop

I’m not going to get involved in this topic but I do want to point out that when you enter the country either through an airport or a Port-of-Entry (land border) the Officers conducting the interviews, checking passports, searching your laptop, ect.. are NOT U.S. Border Patrol Agents. They are Customes and Border Protection Officers. Border Patrol Agents can work at a POE but the main responsibility of USBP is inbetween the Ports-of-Entry. Both agencies are part of DHS. Just thought I’d clarify the error in the above ariticle.

You guys bring up some valid points as to privacy issues, it will be interesting to see how it plays out in the courts.

Bradley Stewart (profile) says:

Our Government Has Gotten A Little

funny in the head. I’m not much of a traveler but if I was while this whole thing is getting itself sorted out if I wanted to take a computer across national borders I would buy one specifically for this purpose. Sure I am for fighting nutty laws, rules, and regulations, I just don’t have the time or money to do it. In a case like this I would rather just slip through and call it a day. I’m not going to spend the rest of my life fighting against the statements of all these bloviating politicians who’s sole purpose in life by making these statements is to create a campaign ad and by doing so it becomes the birth place of these goofy laws rules and regulations.

Penny Sanchez says:

Is this just coming IN or also going OUT

I’ve recently had my laptops and cell phones confiscated at a land border coming back in to this country from Canada of all places. I just wonder if they’re going to start searching people’s devices upon attempt to depart the country too. As in, you can’t LEAVE the country with digital devices either?

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