Border Insecurity

Civil liberties do not extend to border crossings, apparently. By 9th Circuit Court of Appeals ruling, any hard disk transported across the border can be searched extensively, without the need for probable cause, or a search warrant.

BORDER INSECURITY
With a conviction for online child exploitation, Stuart Romm is hardly a sympathetic advocate for computer privacy.

Still, what happened to Romm when he crossed the border into the United States worries some legal experts. The laptop computer that he carried with him was intensively searched by customs officials. On July 24, the 9th U.S. Circuit Court of Appeals ruled that the search was legal.

In U.S. v. Romm, No. 04-10648, the San Francisco-based 9th Circuit ruled that customs officials can seize and search the contents of anyone’s laptop computer, even in the absence of a search warrant or probable cause.

Some attorneys say the ruling goes too far, invading the privacy of anyone who crosses into the United States. And the ruling may pose special problems for attorneys who need to keep client information confidential when they go on business trips overseas.

“What’s dangerous about this opinion is that it pushes the line for searches along the border very far toward one end of the constitutional spectrum,” says Shaun Martin, a professor at the University of San Diego School of Law. “It is one thing to turn on your computer in the airport to make sure it is not a bomb. It is another thing for customs officials to turn on your computer and to read everything you ever wrote and to look at everything you ever downloaded.”...

Technological protections won’t do much good, either. It’s possible to password-protect a computer and encrypt its files, but that might provoke an unpleasant response from customs officials. “The danger is that they will keep you in the airport or keep your computer until they can access those files,” Martin says.

The best practice may be to keep sensitive information off the laptop entirely. Yet even if the client data resides on a law firm’s servers, and a traveling attorney merely uses a laptop to connect to the servers via a virtual private network, there may be trouble. For instance, the laptop will create temporary files of any Word documents that are opened. These temporary files will be on the hard drive, and they might be recoverable through forensic examination.

Even worse, the customs official might simply demand the attorney provide the password to the law firm’s VPN.

Paparelli is aware of at least one instance in which a customs agent asked for an e-mail password so the officer could examine the individual’s e-mail correspondence. “Imagine if that were the password of a company employee, and it led the agent into a corporate network database,” he says.

Holy freaking linguini, Batman! Why wouldn't this apply to searching the contents of one's iPod, looking for contraband MP3s, for instance? Or whatever is of interest to the Imperial Army?

Tags: civil_liberties, /judicial_activism, /Know your rights