Laptop Inspection/Seizure at Border

Laptop Inspection/Seizure at Border

Laptop Inspection/Seizure at Border

As technology evolves, so to does government interest. It use to be top secret papers would need to be copied and given to a KGB handler, to get back to Moscow, now, mini-SD chips fit 8+ GB, which can hold thousands of pages of documents. American's have the Fourth Amendment as a shield to protect them from unreasonable searches and seizures. The Fourth Amendment has evolved with technology. See, United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) ("[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.").

However, the Fourth Amendment ceases when you want to enter back into the USA. Every body cavity and computer is open to inspection with little more than reasonable cause. A true border search can be made without probable cause, without a warrant, and, indeed, without any articulatable suspicion at all. The only limitation on such a search is the Fourth Amendment stricture that it be conducted reasonably. Note that the reasonableness calculus is different at the border (i.e., looser) than it is inland. Despite such, when entering the USA, and, for the purposes of this post, a person has the Fifth Amendment as a shield.

In a recent decision in Vermont, In re Boucher, a federal magistrate judge held that the Fifth Amendment right against compelled self-incrimination protects a suspect against having to reveal the password permitting access to his computer files. The software the defendant used, and which I recommend, besides using file wiping software in conjunction with other counter-forensic measures, is PGP whole disk encryption. Nothing has broken this encryption. The court determined that if Boucher was "forced" to provide the passphrase, then the contents could incriminate Boucher thus violate the Fifth Amendment. You can find the court's opinion here: http://www.volokh.com/files/Boucher.pdf

The end result, if you have material on a computer you do not want inspected, encrypt it. If the government can get a warrant to place spy ware on your computer while 'inspecting it' to reveal your pass phrase, then encrypt the file on a thumb drive.

Of course, if your 'vacation' included taking pictures, then transfer those pix to an encrypted drive and insure the SD card from the camera is securely wiped. In short, for every measure to obtain information, there's a counter-measure. However, if you are doing something while outside of the USA which can attract the Feds, I recommend---DON'T DO IT. Freedom is not free, but stupidity will put the most intelligent in prison.

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