Federal Agents Allowed to Take Your Laptop: Is This a Necessary Evil?
Crimes committed via cyber transactions have been rising at an increasingly alarming rate, hence many feel that random inspections and detentions of laptops and other electronic devices are ethical in the name of security. The Department of Homeland Security has released recent security information about the legalities of allowing federal agents to take, search and share information found on a traveler’s laptop or other electronics, without being deemed a violation of privacy, during border searches.
These agents can, accordingly, take these electronics from travelers for any amount of time, be transported to any place for inspection, and be subjected to processes such as language translation and data encryption if authorities observe anything suspicious. The power to detain suspicious devices and materials is supported by the July 16 policy released by DHS agencies U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.
Devices or materials that have the capability to store information in either digital or analog forms are covered in this policy. Items falling under this policy include flash drives, cellphones (mobile phones), beepers (pagers), hard drives (hard disks), video and audio tapes and even MP3 players (Apple iPod, iPhone, Microsoft Zune, Creative Zen). Physical paper based materials, including written forms of documentation such as books and scrap papers, are also licensed to be withheld for the same reasons. The security policy does require that authorities be reasonable and use delicate handling of information that may be involved in business and confidential data between lawyers and their clients. However, it is still unclear as to the procedures for personal data, like a traveler’s medical and financial records.
Once copies of the suspected information are made and after investigation found to be okay, the policies strictly impose that these copies be destroyed and those that have been sent to non-federal entities must be surrendered back to the DHS immediately for destruction as well.
This new security imposition has been understandably met with mixed emotions by the public. In a USA Today published opinion piece, the Department of Homeland Security Secretary Michael Chertoff expressed that the measures aim solely to protect the citizens, since dangerous information, including illegal pornography and terrorism documents, can easily be stored in laptops and other electronic devices. He stressed that only under a “certain level of suspicion” will travelers be required to undergo this “thorough examination” to ensure the safety of the yearly 400 million travelers. Not thoroughly checking passengers that may be carrying dangerous information, he added, could potentially be fatal – a high risk they are not willing to take.
Even United States citizens are to be subjected to this inspection, as it’s not just a process that only tourists and foreigners entering the country have to do. Officials supporting this plan feel that terrorism can never be taken too lightly and these practices to avoid attacks have been ongoing for a long time already and have saved many lives.
Sen. Russell Feingold expressed alarm over the introduction of the new policies and vowed to amend this act to make it clear that race, religion, and origin biases should not factor into who is being searched as well as to impose more specific instances and conditions that are considered suspicious during these border searches.
Appellate courts in other states, such as the U.S. Court of Appeals in the 9th Circuit of San Francisco, have already begun placing these rules into motion, although there are still many civil public liberty groups that have requested further clarification and full disclosure of the policies and procedures that are stipulated.
Do you feel these search and seizure laws are necessary to ensure the safety of citizens or are they a breach of privacy?
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I want to give an advice how to keep your data safe: you leave all files at home PC and access it remotely. The details are here
I found your blog on google and read a few of your other posts. I just added you to my Google News Reader. Keep up the good work. Look forward to reading more from you in the future.
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