Court Says Border Searches Of Your Computer Are Okay Because You Shouldn't Keep Important Info On Your Computer

from the final-up-yours-of-2013-to-the-4th-amendment dept

This one is hardly a surprise, given how many (though not all) courts have ruled concerning searches of computing devices at the border. The government’s general theory is that there is no 4th Amendment right at the border, and thus customs officials can search anything. The argument that they’re trying to prevent “bad stuff” from getting into the country really doesn’t make much sense though. If bad stuff is “on a computer” it could easily be sent digitally across the border with no intervention from a customs official. Furthermore, making border searches of laptops and phones even more troubling is the nature of how information is stored. When we pack for a trip we deliberately choose what to include in our suitcase — so we know what’s coming with us. However, on our electronic devices, we pretty much store absolutely everything. Arguing that these are subject to a full search seems problematic — but many courts have found otherwise.

And, now there’s another one. A judge in NY has dismissed a challenge to the searches brought by the ACLU. The judge, Edward Korman, repeatedly quotes former head of Homeland Security, Michael Chertoff, who now makes money by hyping up the threats the country faces, so it’s not like he’s the most unbiased of folks to be relying on for how important these border searches really are. Judge Korman claims that the defendants have no standing to bring the case in the first place. There is one individual (a PhD. student) who actually had his computer searched, and then some professional organizations who worried about their members having their computers searched. The judge is simply not impressed by their arguments… at all. He notes that Customs and Border Patrol appears to search so few laptops that it’s highly unlikely that any individual will have theirs searched — and thus these groups can’t really allege a likely harm. He points out that it’s wrong to use a declaratory judgment case to address “a claim of alleged injury based on speculation as to conduct which may or may not occur at some unspecified future date.”

As for the one guy, Pascal Abidor, who did have his laptop searched, Judge Korman is also not impressed, noting that he’s not suing over that particular search, but the possibility of future searches. The judge seems a bit perplexed by this decision, but notes that it takes away his ability to get standing:

Abidor could have established standing in this case by adding a cause of action for damages based on his claim that he was subject to an unreasonable search. Such a cause of action would have provided the occasion for a trial or a motion for summary judgment that would have fully developed the record with respect to both the initial quick look search and subsequent forensic search. No such action is alleged.

But, as Judge Korman notes, if he can’t show any real likelihood of future harm, he can’t show standing.

Even after dismissing for lack of standing, the judge decides to take on the issue anyway, and this is where he starts to get really insulting to anyone who thinks that perhaps they should have some privacy rights at the border. He openly mocks the plaintiffs for arguing for the need for a “reasonable suspicion” standard for searches, noting that this bar is so low that it’s not like they’d get much more privacy out if it anyway:

Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources.

He goes on to suggest that since traveling internationally involves going into other countries, these same people would probably have even less privacy over their data, since other countries may be even more willing to search their computers. He even cites the situation of David Miranda having his electronics searched in the UK.

Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah. Indeed, the New York Times recently reported on the saga of David Michael Miranda who was detained for nine hours by British authorities “while on a stop in London’s Heathrow airport during a trip from Germany to Brazil.”

While the judge’s point is correct that other countries are unlikely to protect the privacy of travelers as well, and that means that any information on a laptop may be inherently unsafe, it seems like a bit of a weak copout to argue that since other countries have no respect for your electronic privacy, that the US shouldn’t either.

He goes even further, arguing that because there’s a “special need” at the border to stop bad people, that it’s perfectly fine to ignore things like probable cause or reasonable suspicion — again quoting Michael Chertoff to suggest that border laptop searches have stopped “bad people” from entering the US.

But then he argues that since everyone knows they may be searched at the border, there isn’t really an invasion of privacy:

The invasion of privacy occasioned by such a border search, however, like the search of luggage, briefcases, and even clothing worn by a person entering the United States, is mitigated by other factors….. As Professor LaFave observes, because “the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches.” …. Thus, “[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him.”… Indeed, because of the large number of laptop computers (close to a million per year) that are lost by travelers–numbers that far exceed the comparative handful of laptops that are searched at the border–the sensible advice to all travelers is to “[t]hink twice about the information you carry on your laptop,” and to ask themselves: “Is it really necessary to have so much information accessible to you on your computer.”

This seems problematic on multiple levels. First, if we go by the idea that there’s less of a privacy violation because you know it’s coming, then that gives the government the right to ignore the 4th Amendment so long as it tells you ahead of time that it’s going to ignore the 4th Amendment. Even the Supreme Court in Smith v. Maryland — the infamous case concerning the 3rd party doctrine — states that such a scenario is ridiculous, and that just because you know that you’re going to be searched, it doesn’t automatically make the search reasonable.

As for the suggestion that you shouldn’t store stuff on your computers, I’m sure that’s great in theory, but I’d like judges to make decisions based in reality. This suggestion is basically “don’t use your computer for what it’s designed for, because we might search it.” That’s not exactly compelling.

Again, given past precedents, and the specific facts of this case, it’s not entirely surprising. That doesn’t mean it’s not disappointing to see yet another middle finger given to the 4th Amendment to close out the year.

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Comments on “Court Says Border Searches Of Your Computer Are Okay Because You Shouldn't Keep Important Info On Your Computer”

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44 Comments
Rachel Keslensky (user link) says:

Data Loss vs. Data Theft vs. Data Incrimination

Really, I can guard against my laptop being lost/destroyed by taking backups.

I can guard against my device being stolen by locking it up somewhere or keeping it on my person. If my device is stolen, there’s a loss of privacy, yes, but I can wipe the device remotely or recover it using tools on my machine, or at worst treat it the same way I do a lost laptop.

I can’t guard against border patrol snooping through my machine just because I have a cartoon character on my bag except by either a) not bringing my computer, or b) not travelling.

I can’t help but wonder if people would be so cavalier about the idea of border patrol looking through computers if they expanded “computers” to include smartphones.

John Fenderson (profile) says:

Re: Data Loss vs. Data Theft vs. Data Incrimination

It’s not so good for the laptop (which I encourage shipping to your destination via a parcel service instead of bringing with you on your travels), there is a good way of handling the smartphone side of things.

Back up the entire contents of the phone (but not onto the cloud!) Wipe the phone and reset it to factory defaults. Put just the information you will need during travel back onto the phone. When you arrive at your destination, restore from your original backup.

TKnarr (profile) says:

Not surprised

The precedents are too solidly behind “at the border you aren’t in the US yet, so due process doesn’t apply”. My solution would be 2 SSD drives: one with my actual system and full-disk encryption, one with a vanilla freshly-installed-and-activated copy of Windows and nothing else. Before heading across the border I pop the actual system drive out and ship it to where I’m going, and pop in the vanilla drive for ICE to search to their hearts’ content. They can’t even legitimately complain, there wasn’t a blessed thing standing in their way of a complete search of every file and every byte of data on the laptop. Except of course for there being nothing interesting there, but that’s their problem.

FM Hilton (profile) says:

Another disappointment

Next time you take your computer across any border, just wipe everything off it and leave one huge file in it:

A photo of a large middle finger-as splash screen.

It should read, “Fuck you and your illegal invasion of my privacy.”

Then make sure everything in the computer is not there to search. It’ll drive them batty searching for something that’s not available.

Anonymous Coward says:

Re: Re: Another disappointment

Not if you always used full disk encryption. Then you just need to overwrite the control sectors (highly probable if you reinstall the same operating system with the same configuration) and it’s all gone.

(Technical explanation: the password you type decrypts the real key, which is stored in a bunch of control sectors somewhere in the disk. Even with the password, if you do not have a copy of the encrypted key all the data is lost.)

Anonymous Coward says:

As Professor LaFave observes, because “the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches.” …. Thus, “[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him.”

“Any terrorist would know about these searches and hide any incriminating materials in a cyberlocker or something before trying to cross the border. Therefore, since these searches are completely pointless and could not possibly catch any terrorists, they don’t violate the 4th Amendment.”

out_of_the_blue says:

Oh, shoot, Mike! We end the year pretty nearly agreed here.

Of course, it’s one out of well over a thousand.

But can’t find fault with this piece except that it’s high time We The People tell our servants forcefully and often: YOU’RE SNOOPING SO MUCH THAT YOU ARE NOW THE GREATEST DANGER TO US. STOP IT.

On a happy note, you do still write like a juvenile with annoying filler: “This one is hardly a surprise” and “it’s not entirely surprising”, so for last time this year I get to use good old tagline #11:


Techdirt’s official motto: This isn’t surprising.

12:09:50[n-82-5]

kenichi tanaka (profile) says:

Either the judge is really incompetent or is he really doesn’t know what he just did. I’m bothered by a comment he made, which was included in the article, or paraphrased, but that could lead to thousands of convicted inmates filing appeals over their convictions.

This is what’s in the article above: “it’s highly unlikely that any individual will have theirs searched — and thus these groups can’t really allege a likely harm”.

While I’ll admit that it could be a long stretch but every convicted criminal, if they were smart, intelligent and happen to be a regular reader of Techdirt could use this statement in their appeal stating that “no real harm came to their victims because their victims were so few, compared to the overall population in the United States”.

I’ll admit that ht reasoning on this is very far fetched but that the courts could see a massive influx of appeals from just about every convicted felon serving time in a U.S. Jail or Prison system and that comment attributed to the judge could set off a firestorm.

nasch (profile) says:

Re: Re:

This is what’s in the article above: “it’s highly unlikely that any individual will have theirs searched — and thus these groups can’t really allege a likely harm”.

While I’ll admit that it could be a long stretch but every convicted criminal, if they were smart, intelligent and happen to be a regular reader of Techdirt could use this statement in their appeal stating that “no real harm came to their victims because their victims were so few, compared to the overall population in the United States”.

The judge stated that any particular person is not likely to be harmed by this in the future and therefore this person doesn’t have standing, not that it’s OK that his rights were violated because so few people have been harmed in the past.

Anonymous Coward says:

Object lessson time

Clearly since you’re not supposed to keep important information or your computer we should steal Edward Korman’s computer, gather whatever financial information we can, max out his credit-cards, drain his bank accounts, and otherwise ruin his credit rating. Since he clearly shouldn’t have been keeping such important information on his computer.

Just Sayin' says:

A typical Techdirt analysis...

It’s pretty predictable how this story would be written, it’s almost cookie cutter outrage. Moreover, it’s the sort of outrage that makes no sense.

Let’s start with the really simple and really basic concept, which is that you are subject to search when you cross the border. There is no 4th amendment protection against a border search, authorities are not generally required to hit the points of reasonable cause to search you. Presenting yourself at the border, especially on entry to a country (any country) is reason enough by itself. You have been outside, you may not be complying with the law, and you are bringing in an unknown number of items and currency into the country.

Like it or not, presenting yourself at the border makes you subject to search, plain and simple – and that search extends to everything that you bring with you. Your laptop doesn’t have a magic “does not really exist” cloak around it. Digital data is not and should not be any different from an equally stack of paper, which clear could be searched at the border without qualm.

The judge applies correctly the limitations on standing. A better case could be made by someone who has had their laptop searched repeatedly. As an example, someone who travels internationally on a weekly basis, if subject to an in depth inspection of their laptop contents on every trip might have some standing. That you may cross the border from time to time, and potentially you may perhaps be subject to such a search at some undetermined time in the future is not really very accurate.

Let me put this forward too: Let’s use Mike Masnick as a perfect example. You travel on your business on a regular basis and go outside of the country a number of times each year. Now, on all of those trips, have you ever had your laptop inspected beyond the old “power up to prove it’s real” thing? Have you ever seen anyone else getting pulled out of line for a specific laptop inspection?

Even with you travel experience, you have never been subjected to this (or the rubber glove anal probe, and that one does happen too!).

Finally, and this is very important: you do choose what is and what is not on your laptop. You may not think about it, but if you converted the files on your laptop into printed documents, would you really want to carry all of your business documents with you, all of your private information, all of the chat logs about whatever marginally illegal secret thing you may like? Would you want to show up at the border with your photo album of your femdom bondage party shots, or those pics of you visiting the medical weed shop? You can choose to have these things with you or not, and when you remove the “on your laptop” technology trap and make it just “in your suitcase” or “in your briefcase” you start to understand why the judge ruled as he did.

Laptops and phones are not magic. They are a replacement for a piece of paper, nothing more and nothing less. Apply your same argument to a piece of paper, and see how far it gets. If you show up at the border with a piece of paper, that piece of paper is subject to inspection.

It’s your own logic here. You argue that patents shouldn’t exist because someone took something obvious and tacked “on the internet” or “on a computer” to the end of it, yet you seem to suggest that putting a document “on your laptop” should have more protection than a printed item in your briefcase.

This is another case where not only does the judge appear to give a just and reasonable judgement, based on reasonable logic and reasonable ideas, not extreme points of view.

John Fenderson (profile) says:

Re: A typical Techdirt analysis...

Presenting yourself at the border, especially on entry to a country (any country) is reason enough by itself.

Don’t forget that you don’t actually have to cross a border to be subject to a border search. You merely have to be within 200 miles of one. Which includes the vast majority of US citizens.

Coyne Tibbets (profile) says:

Irrelevant, Irrelevant

Judge Korman’s statement (“Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah.”) is worse than a cop-out.

The argument is completely irrelevant to the case at hand. Yes, the laptop might be searched by another country. That is not relevant to this country, and its constitution, and the respect of this country’s government to the rights of its citizens that are guaranteed by that constitution.

To include this is actually judicially incompetent: In effect, the judge is saying, “If you had appropriately accounted for the way that country behaves, you wouldn’t have a problem with your rights being violated by this country.”

It’s just the same as if he told a rape victim, “If it hadn’t been for your wearing that too-short dress, your rapist wouldn’t have made you pregnant.”

Daemon_ZOGG (profile) says:

.."Border Searches Of Your Computer Are Okay Because You Shouldn't Keep Important Info On Your Computer"

While I agree, border searches of American citizen’s electronic devices is a violation of the 4th Amendment.. I would also agree that keeping possibly incriminating, or private data on your device is not a good idea, either. Cross-border attorneys, and corporate execs’, and anyone crossing the border should use non-RSA based encrypted file transfers instead of physically moving the data. I recommend nothing less than 256 bit encryption. Use something other than standard RSA. At the border, if you refuse them device access, they may detain you. And your device may be remaining behind a lot longer than expected. In short, there are easier ways to get your seemingly harmless data across the border. F*** the communist NSA. Power to the people.

Anon E. Mous (profile) says:

Wait till we see some Federal Judge or Politician have to go thru the border and some Border Agent has no idea who they are and they pull this shenanigan on them, then Holy Hell will break out over what a travesty this unjustified and demoralizing search is.

Only then will the shit hit the fan so to speak, if your just not important they dont care, they say this is about terrorism… That’s B.S. your average terrorist is going to sneak over the border, they have Visa’s and other phony documents to walk in with.

And they sure aren’t going to have a laptop with how to blow up white house folder on it nor are they going to have Osama and Jihad Central in their contacts lists.

This is all about snatching anyone and everyones information and feeding it back to the mother data base for future reference or to further criminal cases against you.

They want to hoover up every piece of information on everyone they can and it has shit to do with terrorism… This is all politics.

Peter (profile) says:

Court says Murder is ok

Judge Korman, you scare me! Who, if not you, will draw the lines for the ones breaking the law?

Many crimes could be prevented if people were more careful – less reveling dress might reduce the likelihood of rape, avoiding dangerous areas might prevent robbery, not wearing your Rolex outside your home reduces the probability of theft. But a careless victim does not justify rape, robbery or theft. And the contents of a laptop should have no influence whatsoever on the legality of a border search.

If it did, you could use your own arguments to even justify murder: “the individual [walking a dark alley at night] is on notice that certain types of [incidents] are likely to be made, his privacy is less invaded by [someone shooting them in the back].”

Anonymous Coward says:

Old people

I think I can see where the “don’t keep important info on your computer” comes from.

It is from people who are used to desktops, and think of laptops only as an extra computer you use when traveling. Under that view, you do all your important work on your desktop computer, and the laptop computer does not have many things in it.

This is completely at odds with the way younger people use computers. For many people, their laptop is their only computer; they don’t even have a desktop computer. Their whole life is on their main computer, which is the laptop. There’s no way to not keep important information on it.

Anonymous Coward says:

As Professor LaFave observes, because “the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches.”

So this logic is the flipside of MRep Rogers idiocy, what he’s saying is that your privacy isn’t violated if you know your privacy is going to be violated. So which is it? Do you have to know your privacy is being violated or not in order for it to be violated?

terry (profile) says:

a messup of a case?

(Quote from article: “Even after dismissing for lack of standing, the judge decides to take on the issue anyway”.)

Did I hear that right? If so, then there wasn’t anything for the judge to decide except the dismissal for lack of standing. So surely everything else he said and wrote was irrelevant to the decision and ineffective as precedent, just [obiter] ‘dictum’?

It’s a bit hard to understand the motivation of the person who was actually affected adversely by the search that started this whole thing off: hard to understand why he didn’t bring up his own injury as an element in the claim. But then again, if the judge was as hostile as it seems, and if there had been a real case for him to chew on, he might have been able to make a stronger and more precedential decision adverse to the freedom issues here — oh well.

Chris says:

Encrypt

Rename your files with the extension too DLL for instance, put it into the windows directory, They most likely wont search there. Or take all the information on the drive and encrypt all of it. Split your drive into 2 and hidaway the second partition. Lots of ways to hid things on your drive. Or even store that critical info away in a JPG image…

Anonymous Coward says:

Well then I’m sure the judge will have no problem with the cops coming by his house to search whenever they want. Because you know, you shouldn’t keep important information in your house either if you shouldn’t keep it on computers.

Important information according to this judge should either be keep in your brain, or thrown away and not kept at all if you want it to be private.

John Fenderson (profile) says:

A disturbing argument

Surely, Pascal Abidor cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bassar al-Assad or Hassan Nasrallah.

I’ve been seeing this sort of argument more and more lately (is this a talking point?). The argument is: anything the US does is just fine as long as some other nation somewhere is doing a similar thing in a worse way.

It’s complete bullshit, and we need to call it out every time it appears.

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