August 4, 2008
Creeping Totalitarianism Department
Laptop Search and Seizure Made Easy
Do you realize that despite Fourth Amendment's right to be secure against unreasonable searches and seizures, government agents can still stop U.S. citizens and search through all our possessions without a warrant, cause, or even suspicion, but just because they want to?
It's true. All you have to do is cross the border.
I've never really understood this. I'm under the impression that courts have ruled that the word "people" in the bill of rights means everybody in the United States, and all U.S. citizens anywhere in the world. So how come when we cross that fine line at the border, we lose our protection against unreasonable searches and seizures that we have on either side of it?
[Update: Kip explains all in a comment below.]
Anyway, it's getting worse. Under some newly published guidelines (which supposedly codify existing practices) Customs agents can seize and search your laptop coputer, iPod, and anything else containing data and search through all your data.
This is not just a case of turning on your computer and skimming it while you wait. They can take it to another location and hold it for days or months. They can make a copy of your data and do a complete forensic examination.
A lot of people keep their whole lives on their computers: All their friends' address, their medical records, financial records, love letters, sexy pictures of their girlfriends, cute pictures of their children. All these things will be read by a bunch of customs clerks.
If you use your computers for business, you may also have detailed client lists, confidential presentations, engineering design documents, proprietary software, internal memos, scientific test results, and all kinds of other business secrets. It could be damaging to your business if a customs employee carelessly reveals such data.
Not that the only revelations of data will be due to carelessness. FBI and CIA agents have sold out their country, and cops have sold their services to organized crime, so it's pretty much a sure thing that we'll be seeing stories about data theft rings in the customs service. How much do you think foreign competitors would pay for copies of the hard drives of a few hundred traveling Boeing executives?
As with all computer seizures, there is a certain backhanded punitive element as well. The government doesn't need your computer, just the data in it---it's a matter of a few hours work to take a forensic image of a hard drive---but customs employees will seize the actual computer and keep it for a while. This can bankrupt a small business.
Scott Greenfield has a great post about computer searches at the border.
For whatever it's worth, I keep my laptop hard drive encrypted so that if it gets lost or stolen I won't have to worry about bad guys having a huge window into my life. I wonder if customs agents can compel me to reveal the password...
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The idea is simple, if not particularly robust to libertarians:
The same session of Congress that passed the Bill of Rights (to send to the states for ultimate ratification) had two months earlier passed a plenary customs search statute. Therefore the Fourth Amendment was "obviously" not meant to apply to customs searches -- the "legislative intent" is, we are told, unambiguous and not open for debate.
That's the Supreme Court's story and they're sticking to it: The Fourth Amendment has never applied at the border, and don't expect it to any time soon.
I still (supposedly) intend to blog about this someday.
Thanks, Kip, that explains what they're thinking.