Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Another Story on Laptop Searches by United States Customs and Border Control

I am reproducing another article that I have come across about searches by the United States Customs and Border Patrol of lap tops and cell phones.  While most travelers are law-abiding citizens and would have nothing to fear as they have nothing connecting them to any activities such as terrorism, drug trafficking, child pornography and other criminal activities, law-abiding lawyers need to protect the confidences of their clients and advisors and business persons need to protect data belonging to employers and/or clients.  Since we cannot wear white and black hats so that the customs officers know who is good and who is bad, travelers to the United States have a dilemma.  I do not have the answers.  I do have recommendations to facilitate business travel without undue delays.  Please see my article entitled "Travelers to the United States May Have Laptops and Cell Phones Searched and Seized" at the following link - http://www.tradelawyersblog.com/blog/archive/2008/february/article/travelers-to-the-united-states-may-have-laptops-and-cell-phones-searched-and-seized/?tx_ttnews%5Bday%5D=10&cHash=2e1ca3eb7d

The following article is posted on InfoWorld and was posted by Ed Foster:

Laptop Searches And Insecure Borders

One of the few things that all Americans can agree on these days is that we need more secure borders. But does that mean when entering the country we must all submit to a search not only of what's in our luggage, but what's in our heads? That's the question raised by recent news stories regarding the U.S. Customs and Border Protections (CBP) practices when searching laptops and other electronic devices.

Last week the Asian Law Caucus and the Electronic Frontier Foundation filed a lawsuit over a disturbing pattern of CBP border searches experienced by a number of travelers, some of them U.S. citizens and mostly all of Middle Eastern or Asian descent. The travelers reported they had been subjected not only to lengthy searches but to wide-ranging interrogations by CBP agents about their religious and political beliefs. Along with the obvious religious and racial profiling concerns, the two civil rights groups want the CBP to reveal its policies for searching laptops, MP3 players, mobile phones, and other devices. Some travelers report that CBP agents copied their personal and business information, demanded passwords to see files containing trade secrets of their company, or even insisted the devices had to be checked to see if they had any pirated content.

How far can customs officials go in demanding access to electronic files? Ironically, the one recent case where CBP agents had clear justification for their actions is the one where the law seems to be restraining their hand. A Canadian citizen's laptop was seized at the border when border agents saw evidence that it had child pornography on it. But the CBP has been unable to access the suspect files because they are PGP encrypted. A grand jury subpoena to force the accused to reveal the encryption keys was blocked by a judge because it would violate the Fifth Amendment right not to incriminate oneself. 

So at least in some circumstances, it would seem that being forced to divulge information inside your head, like a password, is not constitutional. On the other hand, Customs officials often make the argument that searching a laptop is no difference in essence that going through the contents of a briefcase, and no one doubts that CBP agents have the right to do that at the border. And if, for example, border guards have good reason to think a particular individual is an active terrorist, of course we'd all want the contents of his laptop examined in detail.

But what about when the CBP only has bad reasons for the search, like racial profiling or a name indiscriminately added to a watch list? And what if it's not terrorism or child pornography that you are suspected of, but having pirated music files on your iPod or an ungenuine copy of Windows on your hard drive? And how practical is it for CBP agents to spend hours looking for digital contraband of any sort being hand-carried into the country when a thousand-fold of that same content can be entering the country via the Internet every instant.

When the same frequent business traveler is stopped time and time again to be subjected to these excruciatingly prying searches, it's hard to escape the belief that there's at the very least something misguided about the CBP's approach. Yes, international border guards have always had the right to search the contents of a briefcase, but in this country at least the purpose shouldn't be to find out who your friends are or what religion you practice.

Clearly there are some very big and very knotty issues underlying all this, such as how we balance national security needs with our rights to privacy. We can't begin to answer such questions here, but perhaps we can at least try to say what the CBP's policies such be when it comes to searching laptops and other devices. We can all agree those who protect our borders need the right to see what anyone is bringing into the country, but how do we keep them from trying to see what's in our head as well?

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