DHS Limits Laptop Border Searches (a little)Thursday, August 27th, 2009 by Harry Lewis
A year ago we blogged about the guidelines issued by Department of Homeland Security Director Michael Chertoff about laptop searches at the border. As I wrote at the time,
The Department of Homeland Security may take your laptop at the U.S. border and remove it to an off-site location for as long as it wants. Doesn‚Äôt matter if you are a U.S. citizen. There it may examine its contents and have any text it contains translated.
WITHOUT HAVING ANY REASON TO THINK YOU HAVE DONE ANYTHING WRONG.
I was far from the only person perturbed by this policy. It was rational in its way — they can search your suitcase, so why not your laptop? — and yet it was disturbing. Only in recent years have people routinely walked around with their entire life histories in readable format. Why should the government not be required to show probable cause before reading your love letters and personal photos from a decade ago? And then there was the fact that laptops of doctors and lawyers have lots of information about other people on them. Aren’t they entitled to some protection from the curiosity of border guards?
In essence, DHS has put limits on how long the laptops can be held (5 days) and has guaranteed the person whose laptop is being inspected the right to be in the room at the time agents are inspecting the laptop (though not necessarily the privilege of watching what they are doing). ¬†But left in place is the basic right of DHS to look at any laptop it wishes without having to provide any reason for doing so.
The release says only a tiny fraction of laptops have been inspected while the earlier policy was in place, which is nice, but no guarantee that an individual agent may not adopt a different standard.
Whole disk encryption, which is increasingly standard for business laptops, should be standard for private citizens taking their laptops on international trips. The policy document addresses this possibility too:
Officers may sometimes have technical difficulties in conducting the search of electronic devices such that technical assistance is needed to continue the border search. Also, in some cases Offtcers may encounter information in electronic devices that requires technical assistance to determine the meaning of such information, such as, for example, information that is in a foreign language andlor encrypted (including information that is password protected or otherwise not readily reviewable). In such situations, Officers may transmit electronic devices or copies of information contained therein to seek technical assistance from other federal agencies. Officers may seek such assistance with or without individualized suspicion.
So make your encryption key long enough so it can’t be cracked in five days. (My understanding of US court precedents is that the government can’t compel you to disclose your encryption key — though it may be able to obtain a warrant to search your home and your leather appointment book for the place you wrote it down.)
Altogether this new policy seems to me to leave too much to the discretion of the border officials. I recognize that we’d love to catch terrorists carrying blueprints of their targets, but I suspect that some of those searches are for bad pictures. If the number of laptops they want to search is so small, it should not be a big problem for them to get judicial approval before searching them.