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Laptop Contents Searchable at the Border

This hasn’t even occurred to me before as a privacy issue. The Ninth Circuit recently ruled that a US Customs Official has the right to rifle through the contents of your laptop. The issue was brought before the Appellate court in a charge of child pornography.

The traveler’s laptop was searched at a border point by a US Customs official who decided, for some apparent reason, to look at the folders entitled “Kodak Pictures” and “Kodak Memories”. The official found a picture of two nude women and continued to search more and found some evidence of child pornography.

The traveler argued that a search through one’s laptop was unreasaonable under the Fourth Amendement since the laptop was more like a “home” or the “human mind.” The prosecution argued that it was just a normal closed container like luggage, a purse or wallet. The Ninth Circuit agreed with the prosecution.

Ars Technica has looked at this issue in the past as it relates to iPhones or other smartphone devices that can store pictures, passwords, and other sensitive information. Personally, I think it is a place where the law has not competently kept up with technology.

Via Ars Technica.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

29 Comments

  1. (Jān)
    Apr 23, 2008 @ 11:29:28

    That’s scary. What if you have attorney-client work product on there? Mine’s loaded with it, much in image form. I can’t believe they wouldn’t need a warrant to look at the stuff.

  2. Angela James
    Apr 23, 2008 @ 11:42:08

    and found some evidence of child pornography.

    This makes me uneasy. There have been cases of people deeming a picture of a father kissing his child’s belly button as child pornography and getting CPS involved. Would someone consider the pictures I have of Brianna running about naked or in the bath as child pornography? I view them as mementos of the fleeting moments of her childhood that I want to preserve for my memory and hers.

    I don’t like the idea of someone being able to search my laptop either, because how much work sensitive material do I have on my laptop? How much does any business person have on their laptop. Quite a bit, I’d venture to guess. I’m disappointed in this ruling.

  3. Shannon Stacey
    Apr 23, 2008 @ 11:43:12

    Well, if the traveler was carrying his “home” through the border, they would have searched that, too.

    If I absolutely had to describe my laptop in those terms, it would most likely be one of those giant, now-obsolete day planners. But I’m not sure what a Customs official would hope to find on a laptop. An undeclared virus?

  4. Ann Bruce
    Apr 23, 2008 @ 11:49:51

    I’m with Jan. Shouldn’t a warrant be needed for this kind of search?

    There’s a fine line between protecting public safety and Big Brother.

  5. Keishon
    Apr 23, 2008 @ 11:55:10

    I consider this a big invasion of privacy. Scary indeed.

  6. Kim
    Apr 23, 2008 @ 12:08:29

    This article doesn’t mention it but, since 9/11, customs and border patrol are now under the Dept. of Homeland Security and so the Patroit Act comes into play here. The Patroit Act does allow for electronic searches without warrants.

  7. Shannon Stacey
    Apr 23, 2008 @ 12:09:35

    A police officer needs a warrant or probable cause to search my car, but a Customs officer doesn’t if I’m trying to cross the border. If they classify a laptop as luggage, wouldn’t that be the same? If I run up to Canada I know, coming back, they’re free to poke, prod and peek pretty much anywhere they feel a need.

    With the creativity shown by today’s drug dealers and terrorists, I could understand having to prove the laptop isn’t just a shell by being made to boot it up, but rummaging through the files seems like a bit much.

  8. Anne Douglas
    Apr 23, 2008 @ 12:10:46

    Ack. Lovely. I don’t travel all year long, but we do go back to NZ every 1-2 years, and of course I take my laptop along for a month.

    As Angela suggested, where does it stop, let alone start?

    I also love the inference that if you ‘own’ porn they should investigate further because chances are you’re a paedophile.

    *hides her research stash from the bad customs officers*

  9. Jane
    Apr 23, 2008 @ 12:17:09

    I’m going to pull the ruling and see what law it employs.

  10. Kim
    Apr 23, 2008 @ 12:17:15

    Exactly Shannon, re border and customs. But, as far as local LE, I don’t need a warrant to search your car, I only need probable cause.

  11. Jane
    Apr 23, 2008 @ 12:21:01

    Okay, here is the link to the opinion. It is a Fourth Amendment case and not a Patriot Act case.

    Courts have long held that searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment.

    So it looks like it rests on a) location (the border) and b) mobility apparently gives you a lower expectation of privacy. I think the latter argument is specious.

    Here, beyond the simple fact that one cannot live in a laptop, Carney militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is “readily mobile.” Carney, 471 U.S. at 391. Second, one's “expectation of privacy [at the border] . . . is significantly less than that relating to one's home or office.” Id.

  12. (Jān)
    Apr 23, 2008 @ 13:33:19

    Thanks for looking that up Jane.

    I would imagine that a lot of the business people could easily say that their laptop is their office. Mine is. Where it is, is where I work. Don’t they need a warrant to come into your office and rifle through your files?

    I would also imagine that the thousands of business travelers going back and forth between Canada in the States would have something to say about this.

  13. Rebecca
    Apr 23, 2008 @ 15:15:32

    What recourse do other travelers have to contest the law in another Circuit? On what subtlety could the challenge be based on?

    Alas, it seems that under the Patriot Act, Customs can seize and search anything they want to and give no reasons for the action.

    It looks like, more and more, that anything portable may be searched (I’m also assuming that Customs would also demand egress into any external hard drives or jump drives that may be carried), whether it is electronic or basic luggage.

    Brainstorming ways to travel without feeling violated or worry about Big Brother stopping you on a whim:

    1. Resist the urge to use the work laptop as your personal laptop.

    2. Keep one laptop for work/travel. And keep that hard drive really clean. (I know, more money.)

    3. Do not carry anything in an external drive.

    4. Only have the programs you need on that laptop.

    5. Download no images, documents, or anything to that laptop. Or, if you’re in a fix, only those things you must. Download nothing personal.

    6. Just as an order of business: Purchase some dedicated server space (up to 80 GB should accommodate most document, PDF and image needs) and keep all your work and whatever stray personal stuff there. It’s also great, because it can serve as a backup to your most important files.

    7. Or, if you are traveling and your company has a VPN, use that and virtual PC (unless you’ve got a Mac, but there’s something for that, too) to do your work – so that you can keep your hard drive clean.

    The inconvenience is major (and expensive) and I know that having a laptop only for traveling is not possible for many people. So is purchasing the dedicated server space.

  14. (Jān)
    Apr 23, 2008 @ 15:34:22

    8. Move to Canada and don’t come back. ;P

    It really screws the small business owners, who can’t afford fancy setups. So all of their business secrets are there for the picking. That’s really… wrong.

  15. Kim
    Apr 23, 2008 @ 15:42:01

    LOL, I think you all can relax. I am in LE and I train other LE officers in interdiction. If we have a need to search your laptop or other electronic devices we know what we are looking for. In other words, we don’t really care about your business files. We aren’t going to steal your super secret ideas. But if I happen to see a word document titled “How I Make Bombs for Grins and Giggles” or “My Drug Route and Names of My Mules”, etc. then I might take an interest. heh. As far as child porn goes, I can’t speak for all LE, but my dept and I, we are very well trained, we know what it is when we see it and we don’t mistake it for family pictures.

    FWIW-Rebecca, Customs and Border Patrol agents are federal officers with the Dept. of Homeland Security

  16. Shannon Stacey
    Apr 23, 2008 @ 15:55:46

    The traveler's laptop was searched at a border point by a US Customs official who decided, for some apparent reason, to look at the folders entitled “Kodak Pictures” and “Kodak Memories”.

    One thing I’ve been questioning is why a US Customs official would start browsing Kodak moments for some unknown apparent reason. After reading the opinion, I’m wondering if hard drives and photo files are part of the border search protocol for men returning from the Philipines. From what I’ve seen on various news shows and such, it’s unfortunately become a hotspot for pedophiles and child porn.

    It might be some sort of profiling—guy traveling back from the Philipines with a lot of memory capability? And profiling isn’t considered reasonable suspicion legally, I don’t think, so it would go on record as ‘just because’?

    Eh. Just trying to figure out why, other than ensuring it’s a functioning, non-gutted unit, a laptop would even need to be searched at the border.

  17. Robin
    Apr 23, 2008 @ 16:12:11

    In the balance between individual privacy and government interest, the first is the greatest in one’s home and the least at the border. Drug cases have pretty much settled this equation in favor of the primacy of government interest at the border.

    However, I’m thinking that the nature of the laptop as drawn in this case is going to be challenged now, because that’s clearly where the action is — how much cause, if any, the government needs to exert what it considers its interest is dependent upon the classification of the computer.

  18. (Jān)
    Apr 23, 2008 @ 16:19:50

    Kim, it’s not that the scrupulous among you would not, it’s that the unscrupulous could. I question the right of you to even be there.

    I don’t keep personal stuff on my work laptop. I’m not concerned about you finding porn. I am concerned about anyone feeling they have the right to intrude upon my business files, especially when I sign confidentiality statements with my clients stating that their files will be kept strictly confidential with no one having access outside of those in our company. Our servers are secure, our laptops are secured (and yes, someone who really wanted to could break in, but that’s hardly the same as some stranger having the right to open it up and just poke around).

    So now, if I cross the border, I can’t truthfully sign those agreements. How long do you think people will continue to give us contracts if that’s the case? This action could easily limit businesses with confidentiality concerns to US-only contracts, cut into their clientele and profits, and even sink smaller businesses. And that’s no joking matter.

  19. Anon
    Apr 23, 2008 @ 20:35:11

    Look, the sky is not falling.

    It fell on this one more than two centuries ago, and the key words you are looking for are: border search exception.

    The executive has plenary power to search at the border without a warrant or an individualized suspicion of wrongdoing. The executive has always had this power, since before 1789. Under extremely venerable 4A doctrine, border searches are deemed inherently reasonable by dint of the fact that you are entering the country.

    You’ve never had privacy at the border, and if you thought you did, you were wrong.

  20. Lynne
    Apr 23, 2008 @ 21:24:19

    If you encrypt your files, can they force you to open them at a border inspection? I seem to remember something about the Kevin Mitnick case where they couldn’t force him to give up his PGP passkey — on Fifth Amendment grounds, IIRC.

    If you’ve got files that must be kept confidential, maybe encrypting them is the way to go. If your company uses Lotus Notes, store your files in an encrypted Notes database, and don’t keep that database on your Notes desktop. Most people have no CLUE how to use Notes. Heh. Even IT people. :-)

  21. Robin
    Apr 23, 2008 @ 22:23:45

    I thought that the border search exception didn’t supercede the reasonable suspicion standard for body searches and other intrusions on a traveler’s protected privacy. Which would mean that if the laptop is deemed luggage, it can be searched with no suspicion, but if it’s deemed more, like the clothing or the body, the applicable level of suspicion is necessary to search.

  22. Anon
    Apr 24, 2008 @ 04:28:36

    As far as I’m aware, it’s not a general privacy rationale undergirding the body search exception to the border search exception–it’s a specific bodily integrity rationale. That implies that the dividing line is just “body searches.” “Other intrusions on a traveler’s protected privacy” are generally not included. It’s arguable, although it’s never been recognized by the Supreme Court, there’s another exception for destructive searches of property.

    I am not aware of any case that bars nondestructive searches of property.

  23. Anonymous
    Apr 24, 2008 @ 09:32:08

    Lynne, I was wondering the same thing. An alternative for encrypting and hiding sensitive information is the free and open-source project Truecrypt.

  24. Robin
    Apr 24, 2008 @ 12:21:40

    Anon, all I remember is that some of those major body search cases (i.e. the drug mule cases) turned on the privacy question — was the border search exception to the warrant requirement of the Fourth Amendment broad enough to allow certain searches.

    US v. Montoya de Hernandez, 473 U.S. 531 (1985)
    The detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal; here, the facts, and their rational inferences, known to the customs officials clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler. (holding)

    Travelers at the national border are routinely subjected to questioning, patdowns, and thorough searches of their belongings. These measures, which involve relatively limited invasions of privacy and which typically are conducted on all incoming travelers, do not violate the Fourth Amendment given the interests of “national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”

    The “reasonable suspicion” standard effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause.

    I am not aware of any case that bars nondestructive searches of property.

    I’m thinking that this is not the last appeal on this case. In fact, IIRC, the lower court holding was that electronic files could not be searched without some standard of suspicion.

  25. Rebecca
    Apr 24, 2008 @ 12:36:15

    To all: It is a pleasure to read these measured and intelligent comments from such a wide range of smart, knowledgeable people.

    Kim, Thanks for clearing up my misunderstanding as to the status of Customs agents. What’s an LE?

  26. limecello
    Apr 26, 2008 @ 23:25:35

    Even with all the IP issues floating around, I’m pretty surprised by this ruling. At the same time – and for a different reason – not so much. After all, the 9th Cir has always been the “renegade” one. I’ll be interested in seeing if this case is appealed, and what the end result will be.
    I’m also thinking about one’s reasonable expectation of privacy. Would it matter if the laptop is password protected? I know laptop cases can’t be locked now… Even with border privacy expectations being different would a pw matter? And the 4th A rights Jane mentioned have long been held as precedence… but still. If an officer couldn’t squeeze a coat to see if a brick of cocaine if wrapped within it, searching in a laptop seems pretty far out. I’m also wondering what their reasonable suspicion was for believing the guy to be a pedophile.
    I’m glad they found him… just not thrilled with the how. :P I also can’t help wondering [if this becomes a bigger deal] – if it’ll go under IP, Property, or Crim law.

  27. Anonymous Coward
    Apr 28, 2008 @ 00:25:51

    I’ve worked for years as computer geek and have a pretty good background in computer security. A friend of mine was worried about the situation for reasons similar to what Jan expressed, confidentiality, non-disclosure, etc.

    My first thought was simple encryption, but the problem is that the border guards are highly suspicious, and given broad latitude to confiscate, hold, detain or arrest. Encryption is a huge red-flag, and a threat to their authority. In my opinion, you’re much safer showing them what they expect to see rather than arguing over your “rights” (which seem to be nonexistent these days) and having them rummage through your system.

    My solution? Dual Boot the box. Since my friend works primarily in Linux (which in itself is considered “suspicious”) we simply set it up to dual-boot into Linux or Windows. The Linux partition occupies the lions share of the drive, and implements an encrypted home directory among other features. The windows installation is a plain-vanilla install with just enough “personal” files to look thoroughly boring.

    Adjust the boot loader to NOT display any menu, and default to Windows after a short time. Viola. The owner of the box can boot into Linux by toggling a particular key combination at start up, but the border guards boot into a functional (but boring) windows.

    You can also monkey a couple of the windows utilities so that disk partition information is mis-reported, making it VERY unlikely the second partition will ever be be seen (unless the officer is booting from his own CD, in which case you might still be able to munge the BIOS if you’re really paranoid).

    Also, depending on the features offered by your favorite boot loader, you can probably install two copies of windows, rather than Windows and Linux (if you actually prefer to use Windows for some reason!).

  28. Anonymous
    Apr 28, 2008 @ 15:37:23

    If I were truely paranoid, I think it’s easier to use truecrypt to make a virtual encrypted drive stored in a file. You can rename it to anything you want, so you could recall it Word_Tutorial.wmv or something and store it in some office directory. Then put the truecrypt program itself on a flash stick, which you could store online while clearing the flash while crossing the border. You can mount the virtual drive from running truecrypt from the flash. Then there would be know way for them to know there is encrypted data on your laptop with any kind of (thorough) inspection, all they could notice is that the movie file is corrupt but even then they can only see random data as a truecrypt file does not include headers.

  29. EFF Requests Congressional Hearing on Border Searches | Dear Author: Romance Book Reviews, Author Interviews, and Commentary
    May 06, 2008 @ 10:03:53

    […] few weeks ago the Ninth Circuit released an opinion that allowed searches of laptops (and presumably other devices) at the border. The Electronic […]

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