Warning: US Customs and Border Protection may confiscate your laptop and PDA

by Ned Levi on July 3, 2008

The Fourth Amendment may prohibit “unreasonable searches and seizures” and require “probable cause,” but not at the border, according to the 9th Circuit US Court of Appeals, which has ruled that Customs and Border Protection agents could conduct random, warrantless searches and seizures of laptops without probable cause.

The Los Angeles Times tells the story of Bill Hogan, a freelance journalist, who recently returned home from Germany. At Washington’s Dulles International Airport, a Customs and Border Protection (CBP) agent pulled him aside, and said he could reenter the country, but seized Hogan’s laptop for inspection. He had been chosen for the CBP’s “random inspection of electronic media.” They kept his computer for about two weeks.

Since 9/11, CBP agents have been searching and seizing laptops, digital cameras, cellphones and other electronic devices at the border, without search warrants, or probable cause. CBP agents can subject these devices to extensive forensic analysis, according to the courts.

Maria Udy, a UK citizen working for a US global marketing firm, had her company laptop seized by a federal agent prior to flying from Dulles International to London, in December, 2006. The Washington Post reports Udy said the agent told her he had a “security concern” with her. Fourteen months later, Udy’s laptop had not been returned, nor had she been able to find out what happened to it.

In the 21st century, people worldwide keep many of the most intimate details of their lives on their laptops, PDAs and cell phones. Some laptops have become de-facto electronic diaries. You can’t get more personal than that.

At the border, the details of our lives and work are subject to copying, search, and seizure by government agents, at their whim. We don’t even know what they do with all that information, or how, or even if, they keep it private.

In May, the Association of Corporate Travel Executives (ACTE) joined privacy groups asking Congress to hold hearings about CBP’s practice of searching and seizing travelers’ digital information and electronic devices at US borders. ACTE has asked Congress to pass legislation to safeguard fourth amendment rights at the border, and protect the privacy of travelers’ electronically stored information.

In an amicus brief, ACTE and others asked the full 9th US Circuit Court of Appeals to reverse the decision upholding CBP rights to search and seize laptop computers without a warrant or reasonable suspicion.

ACTE Executive Director Susan Gurley expressed my point of view well when she said, “ACTE questions any ruling that allows the government of a free country unlimited power to read, seize, store, and use all the information on any electronic device carried by any traveler entering or leaving the nation – without suspicion or due process.”

Whether or not we agree with ACTE, or the Bush Administration, for now, travelers need to have an electronic’s strategy if they want to protect their privacy, and use of electronically stored information, when crossing the US border.

Security expert Bruce Schneier says your best defense is to clean up your laptop. “A customs agent can’t read what you don’t have. You don’t need five years’ worth of email and client data. Delete everything you don’t absolutely need.”

As an independent consultant when I travel out of the country:

  • I use the service, GoToMyPC.com to securely connect to my office, via the Internet, while traveling.  I remotely run all my email on my office workstation via my laptop, as well as draft all letters and reports, and access all business and personal records.
  • I erase the small amount of data on my laptop which I might have stored on it for meetings or customer support before reentering the US.
  • I delete all history, cookies and other browser files after every Internet session on the laptop, and never store any passwords.

The only data left on my laptop, when I come home, are tons of photos which I’ve backed up on a small portable hard drive during my travels.

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  • http://www.ffocus.org Bruce King

    This is all kinds of messed up. I can’t believe that the 9th Circuit Court, which is traditionally one of the more liberal Courts, would let this stand. What are you supposed to do when they take your laptop? Can I have a receipt for that please? You really don’t want to hassle the CBP people, because even Americans have *ZERO* rights at the border. Lawyer? Nope. Phone call? Nope? Right to keep your pants on? Nope. America is not the same America as it used to be.

  • SirWired

    Really, the feds are well within their rights here, but the searches/seizures are not being implemented in a way that will endear folks to the policies of the federal government.

    Firstly, the First Congress (who we could assume knew what the Constitution and Bill of Rights meant) passed a law allowing the inspection of all persons and things crossing the border. Pretty much a blanket exception to Probable Cause. Really, this makes sense; since a nation has no control over the activities that happen outside its borders, inspections of everything and everyone that cross the border definitely changes what is “reasonable”. Note that your other rights (such as your First and Fifth amendment rights) still apply.

    Now, at first glance, you might say that inspecting the contents of all digital devices would be an invasion of your privacy rights. However, we can easily conceive of a box of printed material (something eminently searchable) that would be illegal contraband… why would that change just because the printed material resides on an electronic device?

    However, perhaps instead of seizing the machine, they could make a copy that is put in a privacy-protected digital store, and the only way evidence could leave the store would be a warrant. (The fact that the current administration would likely ignore any such restrictions is another topic entirely.) If you have encrypted data and refuse to consent to a search, then seize the item. (If you refuse to consent to customs searching something you physically carry, it gets seized… why should a laptop be any different?)

    SirWired

  • Ned

    SirWired, you make some excellent points about search and seizure at the border. Thanks for taking the time to make your comments. I just don’t think the situation is as cut and dried as you imply.

    You touched on one of the problems, privacy of the data seized by the CBP. You suggested a privacy-protected digital store. That might work. A problem right now is that Homeland Security is completely refusing to explain any of their procedures, including how they keep the data collected private and secure, and after they finish using it, if they find nothing wrong, what they do with the data.

    CBP spokeswoman, Lynn Hollinger, said officers do not engage in racial profiling “in any way, shape or form.” She said that “it is not CBP’s intent to subject travelers to unwarranted scrutiny and that a laptop may be seized if it contains information possibly tied to terrorism, narcotics smuggling, child pornography or other criminal activity.” Two realities say her statement is untrue. First, we know that the vast majority of travelers questioned, searched and who have had electronic devices seized are people of Asian or Middle Eastern descent. Next we know that CBP has a random inspection of electronic media program where they seize electronic devices for forensic inspection regardless of the likelihood it contains anything more than family photos. They have said they have that program to keep terrorists guessing. I think that program definitely subjects the average traveler who gets randomly chosen to “unwarranted scrutiny.”

    Please consider the words of David D. Cole, a law professor at Georgetown University, who has said “It’s one thing to say it’s reasonable for government agents to open your luggage. It’s another thing to say it’s reasonable for them to read your mind and everything you have thought over the last year. Laptop records are as personal as a diary, but much more extensive. It records every Web site you have searched, every e-mail you have sent. It’s as if you’re crossing the border with your home in your suitcase.”

    Mark Rasch, a technology security expert with FTI Consulting and a former federal prosecutor said, “If the government’s position on searches of electronic files is upheld, new risks will confront anyone who crosses the border with a laptop or other device. Your kids can be arrested because they can’t prove the songs they downloaded to their iPod were legally downloaded, lawyers run the risk of exposing sensitive information about their client, trade secrets can be exposed to customs agents with no limit on what they can do with it, journalists can expose sources, all because they have the audacity to cross an invisible line.”

    When Congress passed laws about searches at the border, and when the Courts started setting precedent about the application of the fourth amendment at the border, the issues of electronic storage and how we use computers today in our daily lives didn’t exist.

    Permit me to talk to the legal issues for a moment. The Fourth Amendment of the U.S. Constitution states: “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.”

    To date, the federal courts have held that searches of laptops and other electronic devices belonging to people entering or leaving the country qualify as a permissible exception to the Fourth Amendment. The problem is that there is considerable case law related to the issue which clearly supports a distinction between two types of searches — routine and nonroutine, according to many Constitutional Law experts.

    These experts point out that nonroutine searches, such as a strip search, are distinguished by their invasiveness and require a “reasonable suspicion” that the person searched is involved in an illegal activity.

    The Congressional Research Service, a division of the Library of Congress stated in a recent report, “The issue that the federal courts have been confronting recently is whether the border search exception [to the Fourth Amendment] applies to electronic storage devices and, if it does, whether a laptop border search is routine or non-routine, and if found to be non-routine, what degree of suspicion or cause is needed to justify the search to satisfy the Fourth Amendment.”

    Attorneys for ACTE and the EFF argue in their recent brief that the blanket right to seize, copy, and store information on electronic devices threatens the ability of businesses to protect confidential information and establishes an end-run around the Constitution. They argue that the contents of an electronic device are particularly personal and that such devices should be viewed differently than suitcases to be opened.

    “In essence, a search of the contents of a laptop computer achieves electronics surveillance of a person’s life,” the amicus brief states. “Only an extensive search of a person’s home could be expected to provide the government with as much private information about a person as a search of [his or her] laptop computer could provide.”

    SirWired, I concur with ACTE and EFF. I think there is a very big difference between searching luggage and searching a laptop, PDA, or cellphone. If the CBP have a reasonable suspicion that a person at the border is involved in an illegal activity then seize and search their laptop, otherwise, send them on their way with their laptop’s information intact, not searched nor copied.

  • SirWired

    Ned,

    I agree that there need to be additional rules/laws to properly handle electronic device searches. As it stands now, it is a murky, poorly-protected, inconvenient mess that pleases nobody.

    To address Mr. Rasch: Yes, laptops can hold stuff that previously we would never carry with us wherever we go, extremely private information that in the past would never have left the extremely protected home or office. However, I see this as a problem for the traveler that is carrying around privileged or very private information on a commonly-stolen/seized/etc. device. Would keeping a separate “international travel” hard drive/laptop be a real PITA? Yes. Is it a constitutional problem for the government that people are not fully thinking through what they are hauling around in their backpack? No. A journalist carrying around information on confidential sources (or a lawyer hauling information on clients, doctors on patients, etc.) on an unencrypted laptop hard drive is simply a moron, and no different from printing it out, with a big sticker at the top: “Important Information Here!” I know I would be horrified if my doctor was carrying my medical file with him around town, or around the world. Laptops get stolen or lost often enough that I think travelers have a lot more to worry about the seizure by the government at the border if they are concerned about the privacy of secret information.

    As far as encrypted information goes: As I said before, yeah, I’m at a bit of a loss here… the only compromise I can think of would be if you don’t unencrypt, you lose it and don’t get it back, but you cannot be forced to reveal your key (you don’t lose your fifth amendment rights at the border)… We would never permit a traveler to carry a sealed safe across the border without the possibility of search, why a sealed laptop? However, that safe can be opened with or without your cooperation… a encrypted laptop cannot. I expect that while a Citizen/National would simply have to give up the device for the crusher, for a foreign visitor, it would be grounds for putting you on the next flight home; there are certainly no constitutional restrictions on who can be turned around at the border.

    As I stated in my last post, just because contraband is in a machine instead of a box of paper, doesn’t make it any less illegal; why should the constitution treat it any differently?

    To address the point by Mr. Rasch: Yes, a laptop can hold the equivalent of several tons of paper, but the size of the task does not really make any difference to the constitutionality. A mega-container-ship is not any less searchable than a one-man skiff at the border.

    While I think I have made it clear that I believe that the current rules are constitutional, I am most certainly NOT saying that they are the right thing to do.

    Some sane rules regarding privacy, timelines for the return of seized equipment, etc. would go a long way towards a much better situation. A proper set of laws setting up a good way to handle electronic searches could both retain the nation’s right to a secure border, and protect the privacy and property of those crossing it. Yes, change is required, but exempting electronic media from border searches isn’t it.

    SirWired

  • Bill

    I understand and agree that they have a right to inspect things crossing the border…but to steal people’s laptops as part of a completely “random” procedure is completely wrong. I don’t have anything on my laptop nor do anything in my life that would even remotely concern the United States government. At the same time, I have no desire to have my laptop siezed as a random act. Were they to seize mine, I would have to purchase another one or go home…which is an absurd thing to go through. Should I travel with two laptops in case they take one? Perhaps they would take both? Maybe I should just Fedex my laptop to a hotel and pick it up when I cross the border…

    I’m all for the United States being a secure country, but don’t penalize me or expose me to undue risk for crossing the border. The laptop isn’t all that expensive anymore but the cost of the inconvenience is.

  • Tatoosh

    Commercially sending your laptop is zero protection. A recent thread in a forum centered around a hard drive sent by a commercial concern to its home office. The item was seized. It arrived at the home office a few weeks later in parts. Yes, in parts. So you could FedEx your laptop but be sure to send along a set of tools for reassembly. Likely not necessary, but not outside the realm of possibility.

    Can I imagine objecting t the government perusing my paper diary. Yes, I can. So much so that I don’t bother returning to the United States very often. Not that I have much to hide though I don’t particularly live my life so that I can be nominated for sainthood. But whatever I do, I don’t much think the government or its lackeys (of which I was one for a few decades) have any business sorting through the minutia of my life, digital or otherwise, without real probable cause.

    There is always an excuse for totalitarian/facist security. Hitler and Mussolini found very plausible reasons for their actions. And the majority of people in their respective countries agreed with them. I see the USA on the same path with a sense of complete justification. And I, for various reasons, don’t live there anymore. Don’t plan to in the near future either. I voted. With my feet.

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  • brian Ashley

    The friendly nature of the USA is been ruined by Border nazis. They treat UK visitors like dirt. I have had nicer welcomes in Iran and Syria>

    Give any American a hat and a badge and they turn Nazi

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  • http://www.abeontech.com Abe

    Very useful information.

    I’ve been too busy to check up on this, but googled your page.

    Very informative, thanks!

  • http://enemiesinwar.com Brian Kilcullen

    When weighing the protection of the individual’s 4th Amend. right and the need for security, it should be noted that the advent of the computer age really doesn’t offer up anything new when it comes to breaching the boundaries of the 4th Amend. The 4th Amend. was specifically drafted to prevent what was known as “General Warrants” used by the British empire. When CBP/ICE/DHS raise the security issue as justification for an invasion of a persons privacy, not to mention seizure of electronic device (computer, phone, PDA, etc.) they are merely rehashing what has already been discounted. Having secret information of some illicit or national security nature does not have to be on an electronic device. Can anyone say microfiche, micro-dot or James Bond. I know we’re going back some years for the younger crowd, but the spies and criminals of the cold war era could and I’m sure did, smuggle confidential and highly illegal info just that way. When coupled with the rationale put forth by the Department of Homeland Insecurity today, then this means that they should not only be able to seize and search electronci devices, but persons as well. There is no end to the places a person could hide either a micro memory chip or a “cold war era” micro-dot. Then the DHS will need sizeable apartments and medical facilities to hold and invade persons bodies; just to insure they’re not doing anything illegal. Can you spell GENERAL WARRANT?

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  • Vasquez

    Random seizing electronic devices for potentially dangerous or illegal content is just ridiculous and completely Stone Age approach. There are virtually hundreds of convenient and secure ways to pass any data to any country via Internet. I really doubt that criminals traveling with their secrets stored on their laptops.

    The REAL reason for seizing all that equipment is: US Customs found easy and cheap way to replace their old laptops with new ones. You know… recession ;-)

    Have even better idea for them, why not random seize cars on Canadian and Mexican borders? There is possibility that someone can hide tiny SD memory card with illegal content somewhere in the vehicle.

  • vasquez

    Random seizing electronic devices for potentially dangerous or illegal content is just ridiculous and completely Stone Age approach. There are virtually hundreds of convenient and secure ways to pass any data to any country via Internet. I really doubt that criminals traveling with their secrets stored on their laptops.

    The REAL reason for seizing all that equipment is: US Customs found easy and cheap way to replace their old laptops with new ones. You know… recession ;-)

    Have even better idea for US Government, why not random seize cars on Canadian and Mexican borders? There is possibility that someone can hide tiny SD memory card with illegal content somewhere.

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  • http://www.scribd.com/Darren%20Chaker Darren Chaker

    As technology evolves, so to does government interest. It use to be top secret papers would need to be copied and given to a KGB handler, to get back to Moscow, now, mini-SD chips fit 8+ GB, which can hold thousands of pages of documents.

    American’s have the Fourth Amendment as a shield to protect them from unreasonable searches and seizures. The Fourth Amendment has evolved with technology. See, United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) (”[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.”). However, the Fourth Amendment ceases when you want to enter back into the USA. Every body cavity and computer is open to inspection with little more than reasonable cause. A true border search can be made without probable cause, without a warrant, and, indeed, without any articulatable suspicion at all. The only limitation on such a search is the Fourth Amendment stricture that it be conducted reasonably. Note that the reasonableness calculus is different at the border (i.e., looser) than it is inland.

    Despite such, when entering the USA, and, for the purposes of this post, a person has the Fifth Amendment as a shield. In a recent decision in Vermont, In re Boucher, a federal magistrate judge held that the Fifth Amendment right against compelled self-incrimination protects a suspect against having to reveal the password permitting access to his computer files. The software the defendant used, and which I recommend, besides using file wiping software in conjunction with other counter-forensic measures, is PGP whole disk encryption. Nothing has broken this encryption. The court determined that if Boucher was “forced” to provide the passphrase, then the contents could incriminate Boucher thus violate the Fifth Amendment. You can find the court’s opinion here: http://www.volokh.com/files/Boucher.pdf

    The end result, if you have material on a computer you do not want inspected, encrypt it. If the government can get a warrant to place spy ware on your computer while ‘inspecting it’ to reveal your pass phrase, then encrypt the file on a thumb drive. Of course, if your ‘vacation’ included taking pictures, then transfer those pix to an encrypted drive and insure the SD card from the camera is securely wiped.

    In short, for every measure to obtain information, there’s a counter-measure. However, if you are doing something while outside of the USA which can attract the Feds, I recommend—DON’T DO IT. Freedom is not free, but stupidity will put the most intelligent in prison.

    Darren D. Chaker

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  • Anonymous

    is that real??

    that’s so terrible.

  • Anonymous

    This is quite sensitive. Thanks for sharing this waring, I will take care in the future travel.

  • Anonymous

    Couple of key points to be made here I think.  I signed an agreement as part of my employment that I would not disclose the passwords to my system or allow anyone outside of the company access to corporate data.  There is no language in this agreement that states ”except in the case CBP or the authorities request it”.  My laptop is a company computer that contains ONLY company work and data on it.  I do zero personal work on it – I don’t surf the net, look at my personal emails, etc. as I have another laptop for that at home – so there is nothing on the computer of a personal nature that would be of interest to the CBP.   The company has installed encryption software that encrypts all non system files.  The password to this that I have established is a random password that is 10 digits long and includes letters, numbers and control characters.   While the government may be able to crack this it won’t likley be easy.   If asked by CBP to provide the password I will say no and explain why (1) I have a signed employment agreement that makes it a condition of my employment that I not provide the password to ANYONE and (2) that my company engages in confidential work for the Feds and they do not have the appropriate security clearance to view the contents of my laptop.  If they confiscate the laptop then I’ll require a document explaining this that also provides contact information so my company and their legal team can deal with it.  I’m pretty sure my company would immediately file an injunction.   My company provides security technology for the Federal government (DoD, NSA, CIA, and FBI).   For obvious reasons I can’t allow CBP to look at or copy my hard drive – they simply don’t have the appropriate clearance level.    As far as my mobile phone is concerned – it also has a 10 digit random password.  More to the point however, I remove the SIM chip and simply place it in my bra strap.  The phone can easily be wiped with a few clicks but I don’t think they’ll be able to recover much of anything without the SIM chip.

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    Thanks for your article! It’s very helpful for me!  I will not travel with my laptop:)

  • Lala

     There is a big difference: you can’t duplicate some physically you carry but you can duplicate the information stored in a computer (even encrypted). There is no neede for seizing anything, and even if it’s done the computer still is your and it should be returned soon or later (all of us know it won’t happen and it will be “lost”).
    I’m a computer engineer with forensics knowlewdge so… there is no reason to seizure anything based in electronic memories, unless some public servant need a new laptop for his children, and free of course.
    And the point is how this seizure is done and the reasons, usually nothing you can know.
    It’s called abuse. And when it comes from gob its even worse.

    I agree with this sentence: “There is always an excuse for totalitarian/facist security. Hitler and
    Mussolini found very plausible reasons for their actions. And the
    majority of people in their respective countries agreed with them. I
    see the USA on the same path with a sense of complete justification.
    And I, for various reasons, don’t live there anymore. Don’t plan to in
    the near future either. I voted. With my feet.”

    I never was in the USA and i prefer don’t be closer of this “country of freedom”. If i had to define the USA as country i only can use a word: abuse.

    By the way, terrorists don’t travel in planes with laptops with exposed data…

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