April 25, 2014

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No Warrant Necessary to Seize Your Laptop

The U.S. Customs may search your laptop and copy your hard drive when you cross the border, according to their policy. They may do this even if they have no particularized suspicion of wrongdoing on your part. They claim that the Fourth Amendment protection against warrantless search and seizure does not apply. The Customs justifies this policy on the grounds that “examinations of documents and electronic devices are a crucial tool for detecting information concerning” all sorts of bad things, including terrorism, drug smuggling, contraband, and so on.

Historically the job of Customs was to control the flow of physical goods into the country, and their authority to search you for physical goods is well established. I am certainly not a constitutional lawyer, but to me a Customs exemption from Fourth Amendment restrictions is more clearly justified for physical contraband than for generalized searches of information.

The American Civil Liberties Union is gathering data about how this Customs enforcement policy works in practice, and they request your help. If you’ve had your laptop searched, or if you have altered your own practices to protect your data when crossing the border, staff attorney Catherine Crump would be interested in hearing about it.

Meanwhile, the ACLU has released a stack of documents they got by FOIA request.
The documents are here, and their spreadsheets analyzing the data are here. They would be quite interested to know what F-to-T readers make of these documents.

ACLU Queries for F-to-T readers:
If the answer to any of the questions below is yes, please briefly describe your experience and e-mail your response to laptopsearch at aclu.org. The ACLU promises confidentiality to anyone responding to this request.
(1) When entering or leaving the United States, has a U.S. official ever examined or browsed the contents of your laptop, PDA, cell phone, or other electronic device?

(2) When entering or leaving the United States, has a U.S. official ever detained your laptop, PDA, cell phone, or other electronic device?

(3) In light of the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices, have you taken extra steps to safeguard your electronic information when traveling internationally, such as using encryption software or shipping a hard drive ahead to your destination?

(4) Has the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices affected the frequency with which you travel internationally or your willingness to travel with information stored on electronic devices?

Comments

  1. Shane says:

    I use full disk encryption not just because of the U.S. Customs policy, but the policy was the tipping point for me to start using FDE.

    I don’t have anything to hide from my own government, but I don’t trust them to safeguard my secrets. On my computer, I have sensitive financial information and a whole host of sensitive-but-unclassified information related to my job in the federal government. Not to mention enough information to probably successfully reset my login credentials to my most important third-party accounts.

    Also – I know the types of people the federal government has deemed trustworthy with secrets. And frankly, I have a higher standard than the government does.

  2. Anonymous says:

    I work for an Australian subsidiary of a US multi-national, and corporate policy was changed in response to these US border practices.

    Specifically, staff have been instructed not to travel across the US border with their own laptops, but instead place any files they need to access onto an appropriate network drive, obtain a “clean” laptop from IT prior to travel and then use it to log onto the network at a company site in the destination country to access the uploaded files. Nothing goes on the laptop hard drive other than the base OS install – all the interesting files stay on the corporate intranet.

  3. Catherine Crump says:

    I am one of the ACLU lawyers working on the laptop search issue. Thanks much for any information you can provide us. I know a fair amount about this issue but do not have a computer security or technical background. I am especially interested in knowing whether anyone sees anything remarkable in the released FOIA documents that we did not pick up on.

  4. Catherine Crump says:

    One more thing–if anyone wants to make a comment that they do not want to post publicly, email laptopsearch at aclu dot org. Thanks.

  5. Pseudo Traveler says:

    I have yet to have a device searched or confiscated, but due to reports of various governments doing this (UK specifically) I now travel either with no laptop at all or with a “clean” laptop, stripped of everything except what I absolutely need for the trip. While I have considered full–disk encryption, I have had one too many bad experiences with it (unrelated to any Customs or Police activities) to use it.

    I do carry a “smart” phone with me on these trips. When crossing customs I pop out any memory cards and conceal them on my person.

    I make 2-3 international trips per year (mostly Europe, sometimes Asia).

  6. Whoever says:

    I traveled to the UK twice last year. On one of those trips I had 2 laptops with me. Neither was searched (other than the routine X-ray).

    However, I don’t travel with much sensitive data on my laptop — instead, it has a VPN connection to my home network, where I have a VNC session that I connect to.

  7. Keith says:

    I have been informed that I need to travel to Canada next week. I have also recently learned of an acquaintance who will be spending several years in federal prison because his laptop and hard drive confiscated as he re-entered the US from Canada. (They found some quantity of illegal porn, which he had inadvertently downloaded and subsequently deleted; but the FBI undeleted the files).

    My laptop hard disk has a capacity of 320 GB. There’s no way I can possibly be aware of the contents of every single file on the disk. It is infeasible for me to peruse all of those files and determine which ones might be illicit. And there are dozens of ways which files can appear there without my knowledge.

    Because of the US government’s policy regarding border searches, and because of the harsh penalties and inflexibility of some laws governing possession and transport of illicit material, I will be installing a new hard drive in my laptop before traveling to Canada. That hard drive will have a fresh OS install, a fresh install of my email client and web browser, and nothing else.

  8. Paul Larudee says:

    My hard drive was copied, along with every scrap of paper that I had. Would be interested in pursuing. There is much more to tell, but I’m not planning to write a book, least of all here. Please let me know whom to contact.

  9. Anonymous says:

    I travel internationally for work and need to bring my laptop with me. The nature of my work means requires that from time to time I possess material non-public information which US federal law prohibits me from disclosing to third parties. I have not yet had ICE try to inspect or image my drive, but every time I go through a US Customs checkpoint, I find myself rehearsing in my head what I would say if asked to do so.