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?


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Edwinem, Jun 3rd, 2010 @ 8:29pm

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

     

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      Anonymous Coward, Jun 3rd, 2010 @ 9:29pm

      Re:

       

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      identicon
      bob, Jun 3rd, 2010 @ 9:40pm

      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.

       

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        chris (profile), Jun 4th, 2010 @ 7:17am

        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.

         

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      Anonymous Coward, Jun 4th, 2010 @ 12:05am

      Re:

      5th amendment

       

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      Michael Wigle (profile), Jun 4th, 2010 @ 5:41am

      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.

       

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        chris (profile), Jun 4th, 2010 @ 7:26am

        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.

         

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    Anonymous Coward, Jun 3rd, 2010 @ 8:32pm

    Reason number three: You can't store a software bomb on your laptop that would blow up the entire airplane.

     

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      Anonymous Coward, Jun 3rd, 2010 @ 10:10pm

      Re:

      Yet

       

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      Jake, Jun 4th, 2010 @ 6:32am

      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.

       

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      The Infamous Joe (profile), Jun 4th, 2010 @ 12:21pm

      Re:

      Reminded me of this: http://xkcd.com/651/

       

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    Anonymous Coward, Jun 3rd, 2010 @ 8:38pm

    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?

     

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      Anonymous Coward, Jun 3rd, 2010 @ 8:41pm

      Re:

      "And corporate laptops?"

      Given the unfair nature of our legal system corporate laptops would likely be exempt.

       

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        Anonymous Coward, Jun 3rd, 2010 @ 8:47pm

        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).

         

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      Jeff (profile), Jun 4th, 2010 @ 5:45am

      Re:

      To bad we can't get the Veteran's Administration to use True Crypt with their laptops... no password needed to accesss the personal information of millions of veterans...

       

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      another mike (profile), Jun 4th, 2010 @ 4:28pm

      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.

       

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    rorybaust (profile), Jun 3rd, 2010 @ 8:41pm

    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.

     

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      chris (profile), Jun 4th, 2010 @ 7:44am

      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?

       

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        The Infamous Joe (profile), Jun 4th, 2010 @ 12:23pm

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

        Chrome OS would make this very... interesting, yes?

         

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    Anonymous Coward, Jun 3rd, 2010 @ 8:46pm

    This wouldn't be an issue except that residential broadband is so shitty we can't store our documents and movies at home and get decent access to them remotely.

     

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    Anonymous Coward, Jun 3rd, 2010 @ 8:50pm

    What I don't get is how they cans search these things without a third party monitoring everything to insure that nothing's being disturbed or planted on the machine. (IE inserting viruses/child porn/monitoring tools.)

     

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      Anonymous Coward, Jun 3rd, 2010 @ 8:52pm

      Re:

      I can just see some bureaucrat keeping a pen drive of child porn to stick on the computers of people who piss him off.

       

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    vilain (profile), Jun 3rd, 2010 @ 8:58pm

    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.

     

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      Anonymous Coward, Jun 3rd, 2010 @ 9:04pm

      Re: Corporate vs. personal laptops

      Just use a MicroSD card, those things are so tiny that I doubt they can find it on you (keep it in your pocket somewhere or hide it someplace, there are a dozen places to hide it) and they hold gigabytes of space.

       

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      chris (profile), Jun 4th, 2010 @ 7:34am

      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.

       

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    Anonymous Coward, Jun 3rd, 2010 @ 9:06pm

    "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?

     

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      Anonymous Coward, Jun 3rd, 2010 @ 9:10pm

      Re:

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

      Seriously, please direct me to the list of logical fallacies you read from to cobble together your laughable posts, TAM.

       

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      Anonymous Coward, Jun 3rd, 2010 @ 9:23pm

      Re:

      People can have legal things they want to hide, like their medical records, their SS number, their bank information, etc...

       

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      btr1701 (profile), Jun 4th, 2010 @ 10:46am

      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.

       

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      BearGriz72 (profile), Jun 6th, 2010 @ 5:02am

      Re:

       

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    Brian Hayes, Jun 3rd, 2010 @ 9:20pm

    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?

     

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    Sean T Henry (profile), Jun 3rd, 2010 @ 9:23pm

    Mike you missed a small part from the linked ComputerWorld article the guy had two laptops one was broken and both had child porn of them.

    The reason I point this out is I was going to ask how they could have "reasonable suspicion" if the computer did not work to where they had to send it away for inspection.

     

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      Mike Masnick (profile), Jun 3rd, 2010 @ 10:46pm

      Re:

      Mike you missed a small part from the linked ComputerWorld article the guy had two laptops one was broken and both had child porn of them.

      Actually I do say that in the post. Last sentence of the second to last paragraph.

       

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    Sydney (profile), Jun 3rd, 2010 @ 9:46pm

    Hide the HDD

    Can't you just take the hard drive out of the laptop and put it in your pocket before you hand them your laptop?

     

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    Jesse, Jun 3rd, 2010 @ 10:40pm

    "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.

     

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    Anonymous Coward, Jun 3rd, 2010 @ 10:53pm

    It turns out you can send illegal goods across borders with DHL, so we can stop searching people at the border entirely. That should save us some money.

     

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      Mike Masnick (profile), Jun 3rd, 2010 @ 11:18pm

      Re:

      It turns out you can send illegal goods across borders with DHL, so we can stop searching people at the border entirely. That should save us some money.

      Do you take pleasure in totally misrepresenting the arguments of others, or is it a compulsive thing with you?

      If you send something across the border with DHL it still gets searched at the border. So, that's a totally different scenario. On top of that, you're still talking about a *good* in transit. Content online is available everywhere. It's not crossing borders so much as just available...

       

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    PaulT (profile), Jun 4th, 2010 @ 3:36am

    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.

     

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    BP348, Jun 4th, 2010 @ 4:59am

    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.

     

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    Anonymous Coward, Jun 4th, 2010 @ 5:06am

    Child porn is related to child sex/labor exploitation and child trafficking. These things happen when the border is not secure like when those people were trying to take a bus load of children, who had parents, out of Haiti under the premise that they were orphans.

     

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    senshikaze (profile), Jun 4th, 2010 @ 6:13am

    so if you have an encrypted drive you are forced to hand over the password? f-ck that. i'd rather go to jail.

    and on another note: if you are traveling with a laptop and don't encrypt the whole damn thing, you are a fracking idiot and frankly deserve everything you get.

     

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    Bradley Stewart, Jun 4th, 2010 @ 6:30am

    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.

     

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    Anonymous Coward, Jun 4th, 2010 @ 7:08am

    100 Mile Border Zone Too

    I suppose this also applies to the 100 mile "border zone" in which 2/3 of Americans live.
    http://www.aclu.org/national-security_technology-and-liberty/are-you-living-constitution-free -zone

    Constitution? What Constitution?

     

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    jsf (profile), Jun 4th, 2010 @ 7:30am

    The scary part about this is that the Border Patrol can stop you anywhere within 100 miles of the US border. So they could take your laptop from you in the middle of say Miami or New York or any other coastal city.

     

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    crade (profile), Jun 4th, 2010 @ 8:01am

    Simple Solution: Stop going to the US.

     

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    Anonymous Coward, Jun 4th, 2010 @ 8:33am

    I wonder if I should take my broken laptop with me and act suspicious so I can get it fixed for free.

     

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    btr1701 (profile), Jun 4th, 2010 @ 10:48am

    Distraction

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

    No kidding. We have millions of illegals flooding across our borders every year and these guys are searching laptops for dirty pictures.

    Talk about missing the forest for the trees...

     

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    jesus gonzalez, Mar 1st, 2014 @ 2:46pm

    help

    Can Border Patrol take pictures of me when they stop me.

     

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