Comments on: Laptop Contents Searchable at the Border

By: EFF Requests Congressional Hearing on Border Searches | Dear Author: Romance Book Reviews, Author Interviews, and Commentary

Tue, 06 May 2008 15:03:53 +0000

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

By: Anonymous

Anonymous — Mon, 28 Apr 2008 20:37:23 +0000

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.

By: Anonymous Coward

Anonymous Coward — Mon, 28 Apr 2008 05:25:51 +0000

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!).

By: limecello

limecello — Sun, 27 Apr 2008 04:25:35 +0000

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.

By: Rebecca

Rebecca — Thu, 24 Apr 2008 17:36:15 +0000

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?

By: Robin

Robin — Thu, 24 Apr 2008 17:21:40 +0000

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.

By: Anonymous

Anonymous — Thu, 24 Apr 2008 14:32:08 +0000

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

By: Anon

Anon — Thu, 24 Apr 2008 09:28:36 +0000

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.

By: Robin

Robin — Thu, 24 Apr 2008 03:23:45 +0000

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.

By: Lynne

Lynne — Thu, 24 Apr 2008 02:24:19 +0000

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. :-)