TheAgitator.com
Erase Your Porn
Wednesday, April 23rd, 2008The Ninth Circuit becomes the second federal appeals court to rule that border agents can search your laptop without probable cause. The ruling wasn’t surprising, but it is unfortunate. Probably good for the external drive and web hosting industries, though.
Also encryption; if I recall in the previous case regarding the Canadian border crossing, the issue came down to the fact that the hard drive was encrypted. The first time through, the defendant willingly surrendered the password. When the child pron was found, the border agent was unable to recall the password, and the defendant refused to give it up again. I seem to recall part of the holding was while the laptop was searchable, they could not force the defendant to give up the password, as a violation of 5th amendment protections against self-incrimination.
Can they not search your external drives as well? I mean, if they can search your computer, and make you enter your password so they can look at your files, what is to stop them from telling you to connect your USB thumb drive or iPod to the lappy so they can look at those files, too?
Nope, the best way is still to store your data in hidden files. Or, better yet, install a virtual machine on your computer and hide them inside the virtual machine (you can make the VM invisible so that only you know how to launch it).
Nando touches on my question which is that of the password. My laptop is company issued and there is nothing of interest to the government on it. But I would be disinclined to provide the password. Can they force me to give it up? Imprison me if I don’t?
You would not have to give up the password to an encrypted hard drive (and you should always use whole disk encryption on a laptop with any kind of sensitive information on it).
Yes, the border agents would be allowed to look at the external hard drive (whole disk encryption, again).
The ruling is not surprising, and is entirely consistent with precedent on the issue going back, well, basically forever. In fact, there is existing 9th circuit precedent on the issue within the last five years. It’s not an unfortunate ruling, either. The state’s exercise of its power as sovereign to prevent the importation of contraband is pretty basic. The lesson is not “delete your porn.” The lesson is “don’t try to import contraband.”
Now, there might be issues about what should and should not be contraband (e.g. various drugs), but I am guessing that not many people think it’s a great idea to permit trafficking of child pornography across international borders. I consider myself a libertarian, but not THAT much of a libertarian.
Where is the Idol Blogging?
It seems to me the most obvious thing US border guards might do to people who decline to provide a password is to refuse them entry.
John Jenkins: Yes, of course they can search for physical contraband. That’s (part of) what controlling the borders means. But the idea that information can be contraband is anathema to American values.
Presently you do not have to give a password on the grounds that it may incriminate you (that pesky 5th Amendment). However the US Supreme court is going to hear the arguments also, but I can’t see it being reversed.
This was a decision in United States v. Boucher.
Below is a quote from the wiki page.
On November 29, 2007, U.S. Magistrate Judge Jerome Niedermeier of the United States District Court for the District of Vermont stated “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him.”
On January 2, 2008, the United States appealed the magistrate’s opinion to the District Court in a sealed motion. The appeal is to be heard by U.S. District Judge William K. Sessions.
http://en.wikipedia.org/wiki/United_States_v._Boucher
The market needs to step in and come up with some boot software that (if the wrong password is given) will present a neocon-friendly laptop (American flag with Bush hugging the Pope wallpaper, desktop links to the “report your neighbor” DHS site, double-clicking plays a Toby Keith tune, etc). No functionality or access to the actual data on the drive (which as others have said would of course be encrypted), but more than enough to fool the mouth breather who is demanding to inspect the laptop.
Frank - They have, it is called TruCrypt. Enter one password, you get access to your normal files, enter a duress password, you get access to preselected clean files.
@Bob: That is possible for non-citizens, but a U.S. citizen could not be denied entry. The border agent might seize the laptop, however.
@MacK: Boucher is only binding precedent in Vermont. The decision to which you cite is the federal district court opinion (magistrate’s decisions are appealed to the district court). The Supreme Court would not hear the issue until it was heard (or passed on) by the Second Circuit. Moreover, the issue in Boucher is not the same as in this case. In Boucher the state already had the information because Boucher allowed them to see it, then he did not want to give up the password once the PC was turned off and the disk encryption went back into effect.
There has long been an exception to the Fifth Amendment for books and records, even if such may incriminate you, because requiring those books and records is not compelling one to testify against one’s self (i.e., you were not compelled to *create* the record), so the government excesses against which the Fifth Amendment is intended to protect you are not implicated.
The issue in this case is a Fourth Amendment issue about what searches are reasonable, and border searches, whether based on suspicion or not, are per se reasonable.
@Aaaron: Certain information has always been prohibited. (inter alia, true threats, and child pornography). An atomic view of the hard drive’s contents would just say that the contents are ones and zeroes, but we know that’s not true. It’s not as though the defendant here were charged with possession of pamphlets arguing for the repeal on the ban on child pornography (which pamphlets would be protected speech). He (and the defendant in Boucher) had the real thing on his hard drive. The medium should be unimportant. Do you see a difference between child porn in digital format on your hard disk and physical photographs? The court is unwilling to recognize such a distinction (splitting hairs that fine gets you to the point where you can argue that blogs are not protected because they are neither printed (of the press) nor spoken (of speech)). We are long past such minute hair splitting, for good reason.
The problem with allowing such searches because there might be child pornography is that it is totally useless. Anyone carrying kiddie porn over the border on their laptop is just a stupid and/or careless pervert. You can import all of the porn into the country you want if you send it electronically. The loss of privacy here is too great to justify the insignificant number of pedophiles you might catch. In any case, if computer searches become common, the perverts will just do what everyone here has suggested and encrypt better or just not keep it on their hard drive.
This is the point where we have crosstalk. You are talking about some existential “privacy” that has never existed at border crossings. The Fourth Amendment guarantee extends to reasonable expectations of privacy. The Court has long held that border searches are permissible and that you have no reasonable expectation of privacy in containers of any sort that you bring across the border. You can argue whether that is a sound interpretation of the Fourth Amendment (I believe that it is), and whether border searches are sound policy (the government need not do everything it CAN do under the Constitution), but I don’t think that you can successfully argue that documents and images on a hard drive are substantively different from identical physical documents and images, which is what you would have to argue to try to make computers not containers in this instance.
They are not substantively different: neither should be searched for their own sakes. However, going through physical documents and images is necessary in the search of other items.
Just curious, would it really be that hard to keep files on an encrypted thumb drive and leave that in the car? I don’t know of many border agents who search the car for a thumb drive, and then you can appear very willing to go along with them on your laptop. Also, thumb drives are big enough now to store almost any information you may need to hide (assuming its not videos).
Writing down a threat in a journal should never be prohibited. Actually making the threat to someone is a different matter, but not relevant to searching, and is a giant red herring here.
Child pornography is an issue where it’s easy to jump to bans, because it is so vile. But one can make a real argument that the production is the harm because real children are harmed, and that mere possession shouldn’t be banned. This argument makes me a bit uncomfortable, but I think it holds.