Laptop Search Update
Thank you to Emily Evitt, a colleage at Mitchell Silberberg & Knupp, for her help in preparing this article.
On August 11, 2008, Customs published an official statement of policy. In it, Customs justified suspicionless laptop searches and seizures by pointing to terrorist threats. At the same time, the agency attempted to reassure the public by sharing that its personnel had been searching laptops “for years,” and stressing that “travelers whose laptops are searched represent a very small number of people.”[1]
Two recent cases involving the illegal importation of child pornography reiterated the long standing principle that probable cause is not required at the border. On April 21, 2008, in U.S. v. Arnold,[2] the Ninth Circuit held that searching a laptop is more like searching a traveler’s property than searching his body, thus no reasonable suspicion is required. Similarly, in Ickes v. United States,[3] the Fourth Circuit held Customs could search computers without cause as part of routine border searches and no First Amendment exception existed for expressive materials.
The rule that laptop searches do not require reasonable suspicion applies equally to international business travelers, sometimes with disruptive and humiliating consequences. For example, New York Times columnist Joe Sharkey recounted the story of a traveler returning from Europe when Customs searched his laptop as part of a routine, random search. The computer had a file labeled “Blueprints,” containing plans for his company’s new offices in Madrid and Houston. The Customs official, believing the traveler planned to blow up these yet-to-be-built buildings, seized his computer. It was never returned![4]
Unfounded laptop searches can be particularly disruptive because the current possessor of the laptop may not be its only user. For example, one traveler took two laptops – one personal and one for work – on a Caribbean vacation where he shared a hotel room with buddies. Customs searched both computers and found photographs of young women in alluring poses on the work computer. Although there was no evidence of illegal activity, Customs kept both computers for a goodly length of time. The traveler insisted he had not downloaded the pictures. Customs asked who else had access to the computer, and the traveler was forced to admit that, in violation of company policy, he left his computer turned on while he was out of the room and his friends remained in the room. After two months, Customs returned both computers, but the individual was forced into embarrassing admissions to his employer.
More disturbingly, business travelers often carry proprietary information whereas attorneys generally travel with files protected by the attorney-client and/or the attorney work product privilege, or trade secrets. Attorneys are required to make reasonable efforts to protect client confidential information, although it is not clear how this can be done in the face of suspicionless searches. Below are some tips for protecting yourself, which apply equally to laptops as well as other electronic devices, such as Blackberries, iPods, and cameras.
1. Only take what you really need, both in terms of devices and data. Consider leaving all devices at home or traveling with a “forensically clean” computer that contains only the barebones essentials.
2. If you travel without a device or with a barebones device, there are a number of ways to access your data when you reach your destination:
a. Save all your data on a USB flash drive and FedEx it to your destination, put it in your checked luggage, or carry it discretely on your person.
b. Encrypt sensitive data and e-mail it to yourself.
c. Access information on company servers using a virtual private network (VPN).
3. Encrypt your computer and use password protection. Using a password is not a foolproof solution because Customs usually insists you provide your password. Also, make sure you are not using a firm-wide password; otherwise giving Customs your password could jeopardize the security of the entire system
4. For a stronger method of password protection, the firm can create a different user account for sensitive information. While in transit, you only have the password for the general user account, which contains no sensitive information. If Customs asks you for the password for the secure account, you can truthfully state that you simply do not know it. Then, once you arrive, your company can give you the password to the secure account.
5. Another step is to protect your laptops USB and FireWire data ports. If not protected, these ports provide Customs an easy and fast way to copy your entire hard drive.
6. Back up whatever data you have on your devices on a separate device or hard drive and make sure to not take the back-up device with you.
7. Think about the data you have on your device. Is it the only place you store your personal finances? Where do you store user names, passwords, address book?
8. Assume that whatever information comes into Customs’ possession, should your device get detained, will end up in a database and that information will be used against you. At the very least, it may be used to validate what you are filing with the government in other contexts (e.g. taxes).
9. If you do get stopped, make sure to be polite and reasonably cooperative, but do not let Customs over-play its hand. You are entitled to ask for the badge number of the Customs official conducting the inspection/interrogation, especially if you think that person has overstepped his/her bounds.
10. You are also within your rights to insist a supervisor become involved. Of course, you only want to go this route if you are absolutely sure the inspector is being unnecessarily rude or unprofessional; yes, some of that is an investigatory technique. When that supervisor arrives, you must be able to objectively articulate, as calmly and professionally as possible, why the inspector was out of line.
11. Keep in mind that if you insist on getting a supervisor involved, there are subtle ways in which Customs can make you pay, e.g. making you sit and wait for a long time, so be patient, be polite, make sure you can prove the devices you carry are yours and they are “clean.” Above all, make sure all your declarations to Customs are complete and accurate.
12. If you have been stopped by Customs and had your luggage searched once, the odds are it is probably nothing more than a routine action. If, however, you have your electronic devices searched and something is found, you can bet that each time thereafter upon arrival, Customs will search everything you have with you, including your electronic devices.
13. If Customs seizes your laptop and later returns it to you, sweep your laptop for “Fedware,” a form of spyware that sends files back to the government.
14. And finally, this tip from Joe Sharkey: Rename your laptop files “Grandma’s Favorite Recipes” or something else innocuous. Customs may figure this out, but don’t give your files obviously inflammatory name such as “Blueprints.”
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[1] CBP.gov, Laptop Inspecctions Legal, Rare, Essential, www.cbp.gov/xp/cgov/travel/admissibility/labtop_inspect.xml (last visited Nov. 17, 2008)
[2] 523 F.3d 941 (9th Cir. 2008)
[3] 393 F.3d 501 (4th Cir. 2004)
[4] Joe Sharkey, To Do List: Rename Laptop Files ‘Grandma’s Favorite Recipes’, Nov. 7, 2006
The one place we all thought the Government could not invade was our brains, but even that is now in doubt. With so many of us keeping our lives on our computers, the unfettered right of U.S. Customs and Border Protection (Customs) to search laptops and other electronic devices, even how we think and so what we record in our computers is now subject to search and seizure. When travelers enter the country, Customs officials do not require probable cause to search their electronic devices which has led to seizure of some devices for indefinite periods of time. Equally troubling, Customs is permitted to copy the data and distribute it to other federal agencies, but only under limited circumstances.




