DHS Reviews Policy of Searching Laptops at the Border, Pronounces it Swell

TheRogue

U.S. Customs and Border Protection types are notoriously grabby when it comes to electronic devices at the border. That is to say, if you have a widget, they like to see what's on it. Graduate student Pascal Abidor is suing the federales after an unfortunate run-in on his return from that notorious haven of french fries served with gravy and cheese known as Canada to our beloved United States. Abidor was detained for several hours after officials poked through his laptop and found photographs of Muslims. David House is also suing after a similar search triggered, apparently, by his support for Bradley Manning. Recently, the Department of Homeland Security's own in-house protector of all things civil rights-y and civil liberties-ish examined the policy of searching electronics at the border, and pronounced it good.

In a Civil Rights/Civil Liberties Impact Assessment of border searches of electronic devices, reviewing official Tamara Kessler writes (PDF):

The overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012.

The report also "did not find evidence that searches were prompted by the ethnicity of travelers" and that "the laptop border searches allowed under the ICE and CBP Directives do not violate travelers' First Amendment rights."

In response to concerns over border agents' habit of retaining electronic devices annd searching them at their leisure, say over a span of months — a practice that drew a rebuke from a federal judge — Ms. Kessler writes, "[c]urrent policies ensure reasonable efforts at promptness and, accordingly, we do not believe that setting specific time limits is necessary."

Note that the Electronic Frontier Foundation offers a handy guide for safeguarding your data when crossing a border. You might consider TrueCrypt, which can encrypt a section of a hard drive without revealing the existence of that encrypted data.

Comments

[mr simple]

Note that the Electronic Frontier Foundation offers a handy guide for safeguarding your data when crossing a border. You might consider TrueCrypt, which can encrypt a section of a hard drive without revealing the existence of that encrypted data.

What do you have to hide, Tuccille? Only terrorists are afraid of showing everything they have to the feds.

[R C Dean]

We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

Couldn't you say that about the 4th Amendment generally? The operational burden goes without saying, so I think the question is:

Why is imposing 4th Amendment requirements at the border uniquely void of civil rights benefits?

[John]

Why is imposing 4th Amendment requirements at the border uniquely void of civil rights benefits?

Because the 4th Amendment was never meant to and never has been applied at the border. The Governments search powers at the border have always been pretty much unlimited. And that has always been the case, really pretty much since the dawn of time. Any nation that has ever existed has claimed the right to search ships entering into its harbors and people and items crossing its borders.

The thing is, technically, this is probably the legally correct decision. But morally and as a policy it is horrible. Cases like this is why you have an office of civil rights. They are supposed to be the ones to stand up and say, sure this may be legal but it is still wrong to do.

[darius404]

I forgot about the "Border Exception" in the 4th Amendment. I guess we just don't have access to YOUR copy of it.

[sarcasmic]

I like how the border is defined as 100 miles from the border. The entire state of Maine is under the jurisdiction of Border Patrol They can set up a roadblock anywhere in the state. I got stopped at one on the highway near Bangor. Look at a map. Bangor is not very close to the border. It's in the center of the state.

[John]

Now that is something worth talking about. But the idea that the full 4th Amendment applies at the border is just bunk. It was never meant to. Now how that got turned into "a hundred miles" is much more worthy of scorn.

[Emmerson Biggins]

I'd like to the "hundred mile map" as applied to original 13 colonies. Would there be anywhere that the 4rth amendment applied?

[johnl]

Noplace anyone lived in. The 100 mile limit supposes the founders intended the 4th ammendment as a kind of joke.

[darius404]

Again, where in the 4th does it say "doesn't apply at border"? Oh wait, nowhere.

[John]

Can you just not read Darius? And the Amendment says "unreasonable". That is a big weasel word. And the drafter's mind border searches were always reasonable.

[darius404]

It is a HUGE weasel word. That's not the same thing as declaring the 4th doesn't apply to the border.

And I have to ask the same question back to you John, CAN YOU READ? No reference to the border, let alone a border-specific exception, is in the text of the 4th Amendment.

What this information sums up to is "The 4th Amendment applies to the border just as much as anywhere". The word "unreasonable" doesn't translate to "doesn't apply to border."

[Zeb]

The 100 mile thing is absolute bullshit. But I think John is correct about the border.

[Rights-Minimalist Autocrat]

I got stopped at one on the highway near Bangor.

I hardly know her!

[John]

Its there. Why do we know its there? Because no one at the drafting of the 4th Amendment ever said that it meant any differently. And they were conducting boarder searches from the time it was passed and before that. If they meant for it to apply at the border, I am thinking someone at the time would have stood up and said so or expressed some desire during the debate about how they needed this to stop the scourge of warrantless searches at the border. But they didn't.

The meaning of laws is determined by context and practice sometimes.

[Francisco d Anconia]

Were there a lot of armed guards on the borders in 1791 John?

[John]

On Coast Guard Cutters. Do you think the Coast Guard went and got a warrant every time they inspected a ship?

You really think they thought the 4th Amendment applied to the border in 1791? Honestly?

[darius404]

Its there.

Despite not being written there.

Because no one at the drafting of the 4th Amendment ever said that it meant any differently....If they meant for it to apply at the border, I am thinking someone at the time would have stood up and said so or expressed some desire during the debate about how they needed this to stop the scourge of warrantless searches at the border. But they didn't.

I'm glad you can both read minds AND time travel John, it sure saves us a lot of legal work.

And they were conducting boarder searches from the time it was passed and before that.

Shorter John: "If it was violated even during the time it was first passed, it's not actually a violation!"

The meaning of laws is determined by context and practice sometimes.

First and foremost the meaning of laws is determined by what the law actually says. Blatant disregard for the text here is no less a violation than blatant disregard of the text of the 1st or 2nd Amendments.

[John]

It actually says "unreasonable". And no one at the time ever thought border searches were "unreasonable". The context tells you what "unreasonable" means.

It is not that hard Darius.

[darius404]

The word unreasonable is not the same thing as "specifically doesn't apply to border". That would instead suggest that the 4th DOES apply to the border, and the use of the word "unreasonable" leaves what exactly that means open to interpretation. Which again isn't the same thing as saying it "doesn't apply".

[Francisco d Anconia]

Don't tell John about the law...he's a lawyer. They give you that special decoder ring to decipher what the Constitution "really means" when you pass the bar. The average layman could never understand without it.

[R C Dean]

John, "because its always been this way" doesn't really answer the question of why there are no benefits to applying the 4th Amendment at the border.

I'm sure it has always been this way, but the assertion that the 4th Amendment has no value at the border caught my eye. Because if it has no value at the border, where does it have value?

For that matter, when did the 4th Amendment become subject to a balancing test?

[John]

It certainly does have value. And there is nothing to stop the President or Congress from applying it at the border if they show choose.

[R C Dean]

It certainly does have value.

That's not what DHS says.

[SugarFree]

For that matter, when did the 4th Amendment become subject to a balancing test?

When they included the weasel word "unreasonable." When you open up the possibility of a warrentless search having the possibility of being "reasonable" in certain circumstances, you set up these type of shenanigans.

100 miles limit is crap as a logical policy, for example, but in the current climate will a judge accept it as "reasonable" is all the matters.

[John]

When they included the weasel word "unreasonable."

You just PWND a Harvard Law Graduate SF. See the ridiculous case law on search and seizure in cars as another example of this.

[R C Dean]

Well, it was a rhetorical question. Personally, when I read this:

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.

I read it to mean no searches, period, without a warrant, and no warrants without probably cause, and no warrants that authorize unreasonable searches.

But that, apparently, is just me. And no, I'm not a particular student of the history of abuses of this particular Amendment.

[SugarFree]

For the record, that's how I read it as well. But I do think it could have been written in a less-open-to-screwing-around way, much like the 2nd.

But on the other hand, the enemies of freedom are endlessly clever in their war against our rights.

[Night Elf Mohawk]

I read it to mean no searches, period, without a warrant, and no warrants without probably cause, and no warrants that authorize unreasonable searches.

If they meant, shouldn't they have written "warrantless" instead of "unreasonable"?

How do you have unreasonable probable cause? It doesn't seem to make any linguistic sense to read it that way.

[R C Dean]

You can have a probable cause warrant that is way too broad and intrusive. That, to me, would be unreasonable.

I know, my reading isn't the best fit with the words on the page, but hey, living Constitution, right?

I have the feeling that "unreasonable" was a late addition to the drafting, to satisfy the LAOL-types. Its a little odd to say you have a right to be secure, but its only against unreasonable searches.

Reading it that way, it sounds as if the cops don't need a warrant at all for "reasonable" searches. And if they do need a warrent for reasonable searches, then don't they need a warrant for every search?

[Night Elf Mohawk]

You can have a probable cause warrant that is way too broad and intrusive. That, to me, would be unreasonable.

That's already covered by "...particularly describing the place to be searched, and the persons or things to be seized."

Reading it that way, it sounds as if the cops don't need a warrant at all for "reasonable" searches. And if they do need a warrent for reasonable searches, then don't they need a warrant for every search?

In my world, as a general proposition, reasonable searches without a warrant are those incident to an arrest, in the immediate aftermath of a (violent?) crime, and at border crossings.

Random-ass searches without any articulable specific reason, within 100 miles of a border or not, are inherently unreasonable.

[John]

Two things to remember. First, this is policy. Just because they can do it doesn't mean they have to. If President Hopey McChangey didn't want this to happen it wouldn't. Second, this is the Office of Civil Rights talking, not the General Counsel. They are not making a legal determination but a moral and policy one. And their answer seems to be "fuck you that is why".

I would also note that this issue has been kicking around since the Bush Administration. The Bush people always wanted to say this but never had the guts because they knew Congress and the media would have a fit.

[$park?]

"[c]urrent policies ensure reasonable efforts at promptness and, accordingly, we do not believe that setting specific time limits is necessary."

They have policies in place, what the fuck more do you want from them?

[Fist of Etiquette]

If the Founders wanted your laptop data free from state agents' prying eyes, they would have expressed so in the Bill of Rights.

[John]

And truecrypt is pretty damned amazing. Even the DOJ cyber guys admit they have no answer to it.

[sarcasmic]

It's only a matter of time before software like that is prohibited in the name of fighting terrorism.

[John]

Good luck with that. And yeah, they hate it. But they don't hate it that much because there are plenty of stupid people who don't use it. You have to remember they are not about stopping terrorism. They are about busting enough people to justify their jobs. And my guess is there will always be enough stupid criminals around to do that.

[sarcasmic]

I don't have anything to worry about. Because of a DUI on a bicycle when I was 20, I am deemed too immoral by their government to visit Canadian society.

[R C Dean]

And my guess is there will always be enough stupid criminals around to do that.

But not enough that give them reasonable suspicion, for some reason.

[John]

We have to get that guy coming back from Thailand with the unencrypted pictures of his 14 year old hooker. How dare he do that without taking a private jet like a good Senator does?

[Zeb]

Or using fucking email, or some cloud storage thing. That is the dumbest thing about searching the contents of people's computers. Unless it is just huge amounts of data, there are plenty of ways to get all your child porn and terrorism pans into the US without carrying them over the border.

[John]

You don't even need a cloud source. You could do what Petreus did with his girlfriend and set up an online email account putting whatever you want in "drafts". And then clean your harddrive before you travel or periodically.

[pmains]

Good luck with what? Placing export controls on encryption? That's been done before. Do you mean good luck enforcing it? Circumventing the restrictions?

[John]

I mean good luck with the government preventing people who really want it from getting such encryption. They can't stop child porn, how are they going to stop this?

[Zeb]

And True Crypt is open source, so it's not going anywhere. And export regulations won't stop it.

[Francisco d Anconia]

It's only a matter of time before software like that is prohibited in the name of fighting terrorismthought crime.

FIFY

[Jordan]

Indeed:

In July 2008, several TrueCrypt-secured hard drives were seized from a Brazilian banker Daniel Dantas, who was suspected of financial crimes. The Brazilian National Institute of Criminology (INC) tried unsuccessfully for five months to obtain access to his files on the TrueCrypt-protected disks. They enlisted the help of the FBI, who used dictionary attacks against Dantas' disks for over 12 months, but were still unable to decrypt them.[52] The case presented a noteworthy real-world test which proved the strength of TrueCrypt.

[John]

I have been to seminars with the DOJ computer geeks. And if there is a way around that, it was classified and they were not saying.

[SugarFree]

And if there is a way around that, it was classified and they were not saying.

Waterboard the suspect for his password; hope that he doesn't have a burnout alt-password.

[darius404]

Waterboard? Pssh, there's no need to get all fancy here.

[SugarFree]

TrueCrypt doesn't support a alt-password destruction protocol yet.

[Ice Nine]

Google and I don't know what a "burnout alt-password" is. I don't know about Google but I, at least, am curious.

[Agammamon]

Enter the alternate password and the drive erases/self-destructs.

[Paul.]

I have been to seminars with the DOJ computer geeks. And if there is a way around that, it was classified and they were not saying.

Entirely likely they were lying to you.

[John]

No its not.

[Paul.]

Yeah, yeah it is.

[Paul.]

Wait, forgive me. I misread your sentence. I originally read it as "And there is a way around that..."

You wrote, "And if there is a way..."

I guess I'm not sure what you meant by that.

I'm guessing that the DOJ doesn't have any super-secret way around truecrypt.

[Paul.]

This is excellent news. How long did Dantas rot in jail while being held in contempt?

[Paul.]

Huh, did a little o' my own research:

In the UK, Dantas would be compelled to reveal his passphrase under threat of imprisonment, but no such law exists in Brazil.

So, in Brazil, it's just too bad, so sad for officials. In the UK, it would have been a life sentence.

Good to know.

Re: the UK law.

Never underestimate the government's ability to ban or regulate something through sheer force of will.

Or, no, we won't try to 'crack' your encryption, we'll just throw you in a hole forever until you give us the password.

[Jordan]

I wonder if TrueCrypt allows you to set a different password that will destroy the drive's contents. Of course, if you pulled that in the UK, they'd probably just convict you of terrorism or treason.

[darius404]

According to SF upthread, True Crypt doesn't support an "alt-password destruction protocol" yet.

[Paul.]

A third party app could achieve that on a truecrypt volume.

[Paul.]

Specifically, I've got an idea (if I feel like getting back into my software developer hat) which acts as a dead man's switch. If you DON'T activate or type anything into the app within a time frame, the contents pre-chosen by the owner starts getting written to.

[Loki]

Brazil: the "land of the free"

(Compared to the UK at least)

[Obese American]

Poutine is sweeping the nation.

[jesse.in.mb]

Last time I came back from Canada the border guard asked the reason for my visit. I said "poutine and ketchup chips." He waved me through after he stopped laughing.

[Brandon]

This is why I only read Reason on my burner laptop.

[Paul.]

You might consider TrueCrypt, which can encrypt a section of a hard drive without [easily] revealing the existence of that encrypted data.

Fixed. A savvy observer will note a partition, segment or file (which trucrypt allows you to do) which will be 'gibberish'. They may also note the existence of trucrypt being installed on the laptop itself, again, tipping them off that you may have something to hide.

[John]

Truycrypt doesn't show itself as being installed.

[Paul.]

I haven't used all the features of truecrypt to their limit. But mine does. I have truecrypt installed on this laptop. There's a trucrypt icon, a trucrypt program group, and when I mount my volume, it's in the tray. Is there a way to install trucrypt where it's fully self-contained on the volume?

[R C Dean]

A savvy observer

So, you're perfectly safe from DHS, then.

[Loki]

However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012.

Translation: "CBP agents will now have to fill out a form before trampling on the prole's rights."

[SugarFree]

Always travel with a cheap laptop and some low-grade cryptography software. When the seize it and crack the encryption, it's all just pictures of your own penis dipped in various things, like mayonnaise or hummus or raspberry jam or cr?me fra?che or ranch dressing or guacamole or french onion dip, or a 7-layer salad of all of them.

Even if they detain you, even if they destroy the laptop, you still made them look at perfectly legal pictures of your own savory member.

[Loki]

But how will you be able to prove it's pictures of your own penis and not of, say, an underage boy? Now you end having to show a bunch of CBP agents your junk and hope that they don't go all sex nuts and retard strong as they try and shove your cock into their mouths. No thanks, I'll pass.

[SugarFree]

You shoot from below and get your face the frame. Duh. It's like you haven't even taken condiment junk shots of yourself before.

[Loki]

I can honestly say I haven't. I know, I'm so repressed.

I guess you could also take pictures of yourself in the mirror with artisanal mayo on your junk (while doing "duck lips", of course).

[Loki]

Also, just the pictures will likely be enough to get them all sex nuts and retard strong. If they know they're in the same room with the junk in the picture, well...

[SugarFree]

I've triggered something within you, haven't I?

[Jordan]

Artisinal mayonnaise?

[SugarFree]

Of course. I'm not some sort of animal.

[Rights-Minimalist Autocrat]

Get nude pictures of every border agent's mom.

[John]

Have you met the typical CBP guy at the border? Trust me they are going to like what they see.

[np]

It would probably not be worth the trouble they'd give you if you completely encrypted your drive and refuse to divulge your password and will likely have your device confiscated.

In which case it means having it out in the clear or using hidden containers. You should wipe your device if it ever leaves your hands, and not use any US based anti-virus/spyware until you get a chance to do so, since they can install spyware and the major US AV companies have either refused to answer regarding their policy, or have admitted that they will whitelist government spyware.

http://howto.wired.com/wiki/Pr.....r_Searches

If the CBP officers inspect your computer or phones, be aware of the possibility that they could be installing firmware or software to monitor your activity. They are probably also going to copy as much information as they can off your hardware before returning the items. In the end, they may decide to keep them indefinitely.

Will security firms detect police spyware?

In the case decided earlier this month by the 9th U.S. Circuit Court of Appeals, federal agents used spyware with a keystroke logger--call it fedware--to record the typing of a suspected Ecstasy manufacturer who used encryption to thwart the police.

[R C Dean]

Saw where somebody has developed a super-secure app for messaging and uploading vids and pix. It deletes the goods from your machine after they are uploaded, etc. So you can film that cop/DHS baboon, upload it, and by the time they ask you what you think you're doing, they've got nuthin'.

Can't remember the specifics, but it seems relevant here.