US Border Laptop Search Policies Are Scary
The Department of Homeland Security has revealed its laptop search policy. According to the Washington Post:
Federal agents may take a traveler’s laptop or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.
Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.
I totally saw this coming once the Ninth Circuit ruled border searches of luggage legal – and the Canadian Border is following the DHS’ lead. It was only a matter of time, as I predicted, before they argue that they need the capability to copy or retain data.
This should scare the bejeezus out of Canadians and Americans alike. The border services are notoriously incompetent, and it is inevitable that laptops and data will be lost. As a result, sensitive corporate or customer data will be compromised, identities will be stolen, competitive advantage will be lost, and a host of other consequences will be incurred.
What I find mind-boggling is that Senator Feinstein “intends to introduce legislation soon that would require reasonable suspicion for border searches”. In other words, to re-affirm that the fourth amendment of the US Constitution does apply at the borders. Talk about cat and mouse.
There’s one additional implication for Canadian companies now that this policy has been clarified. Under PIPEDA, companies must safeguard Canadians’ personal data. This has lead to many services, such as those storing Canadians’ health data, to be moved off of US servers due to the wide-sweeping powers of investigation granted under the US Patriot Act. The implication of this new laptop policy is clear: companies operating in Canada must not carry Canadian customer or employee data on laptops to the US.
For folks doing a lot of cross-border travel it’s probably time to get a home laptop and a travel laptop, without any data on it beyond critical stuff.
I left a comment on your Facebook page (where your blog post showed up as posted note). Just to expand/ ramble a bit further: I’m thinking “form follows function” here, with the language (form) showing where we’re headed: Homeland Security = Vaterland “Security.” …Sad days.
The other day Wendy Koslow tweeted an article in the Boston Globe re. infringements by the Bush regime on women’s reproductive rights (which affects access to “morning after” pills, IUDs, and the like). Her “tweet” referenced Margaret Atwood’s The Handmaid’s Tale. Gave me the creeps.
And then there’s Rebecca MacKinnon’s excellent piece on “Silicon Valley’s benevolent dictatorship“.
All in all, the claxon is sounding, but I’m not sure we really know how (or even where) to respond. The Constitution is the obvious touchstone, but it has to be real to people as an ideal, and at the same time we’re so damned post-modern ironic that we can’t fasten to an ideal.
Yes, I’m often amazed at the legislation and regulation that is introduced in the US that is obviously unconstitutional on a number of fronts. But the politicians aren’t concerned about the laws being relevant or even long-lived, only that their constituents see them taking action. Karl Rove has brilliantly capitalized upon the public’s lack of attention span to successfully position issues in such a way that they appeared to the public to mean one thing, when in fact they mean another.
For example, the misleadingly named “Clean Water Act” appeared to be about reducing pollution. However, it actually increased pollution allowances – but nobody in the general public knows that. If you’re a politician, you don’t want to be the guy that votes against the Clean Water Act, even if it is the correct course of action. No voter reads the fine print of the bill, and so a vote against the Clean Water Act ultimately will be used against you in the next election. It’s a Kobiashi-Maru (no-win) situation.
The part that’s especially scary now is the use of very sneaky tactics to avoid the constitutional quagmire altogether. For example, airports are now requiring you to provide ID. This sounds like it would be counter to what many assume is their constitutional right to travel. Although no right to travel is actually described in the US Constitution, it has been established by precedent. Recently, the TSA re-asserted its right to demand ID from passengers – but not to travel, merely to “enter the secure area of airports”. Riiiiight. We’re not denying your right to travel, merely your ability to enter the place you’d need to enter in order to exercise your right to travel.
Of course, I don’t live in the US, so why should I care? Because every concession allowed in the US eventually becomes an excuse to implement similar measures here in Canada, as well as abroad.
And, as if to prove my point: the TSA lost a laptop with 33K Clear Card applicants’ data on it today at SFO. Hurray! I feel much safer now.
“Recently, the TSA re-asserted its right to demand ID from passengers – but not to travel, merely to “enter the secure area of airportsâ€. Riiiiight. We’re not denying your right to travel, merely your ability to enter the place you’d need to enter in order to exercise your right to travel.”
Actually, to be technical, they are not impeding your ability to travel. Travel all you want. Walk, drive, take a train or a bus or boat. They are simply saying that if you want to go where you have access to aircraft you need to show ID.
@William: Sure, if you want to be technical about it. But that’s a lot of what’s wrong here – being literal to the point that it preserves the letter but not the spirit of the law. It’s a practice at which US law-makers are getting a little too adept (along the same lines as “it’s not torture if we don’t leave a mark!”)
Taken to the logical conclusion, the same argument could be used to prevent you from gaining access to the train station, the bus terminal, the ferry pier, or ever the freeway.
“Oh, you don’t have to show me ID to travel sir – just to gain access to the ‘secured freeway’…”
I totally disagree with those so called security laws. I am thinking their effect in a few years when antiChrist will be in charge al all. Us Christians will be sen as terrorists. So we will not be able to travel anywhere. There is only a step to implement this in malls, superstores and even small stores. You are allowed only if you show your ID. They scan it and see that you are a Christian and kill you. We are approaching the end of times.
Uh, wow. I’m not even sure how to respond to that last comment.
Certainly these rules are antithetical to the idea of a free society. And yes, religious intolerance is, in part, already a major driver of the current security mindset.
However, I don’t see the situation taking a 180-degree turn to become anti-Christian as you suggest. After all, most of the security agenda in the current US administration is being perpetuated by the neo-cons, a group with strong Christian values.
As for the end of times – well, the Large Hadron Collider is due to be powered up on September 10th, so maybe you won’t have to wait for long. 😉
Brendon,
I realize that, yes, I am being technical. And you are correct that similar laws could be enacted which would effectively restrict the use of other forms of transit to those willing to show ID. The thing is, there are legitimate reasons for people to have concerns about aircraft security. Even before the 2001 example, people hijacked airplanes and the situation didn’t always end well. Airport security has always been steps above security for other forms of transit. (This is actually one of the drivers for proposals involving high speed rail links in Canada – you can get from X to Y for that meeting without security delays.)
I’m far from intimately aware of all the security laws in Canada, let alone the US. That said, there are both legitimate and perceived needs for a certain level of security. In the longer term, people will get the level of security (with both the good and bad connotations of the word) that they vote for.
@William: Agreed there is a need for security in any situation where there are lots of people. Any public place with a high enough concentration of people is a likely terrorist target. Which means not only airplanes, but also trains (such as the high-speed link you mention), and even malls.
The point here is that the measures being taken rarely increase the security of the public. Restrictions on liquids are ridiculous, because liquid explosives are highly unstable. The “no-fly” terrorist watchlist is ridiculous, because it only stop a terrorist stupid enough to not use a fake ID. Even the ID checks are ridiculous, because you can say you forgot your ID, and they’ll “verify” your identity on-site – so they only stop terrorists who aren’t smart enough to know this in advance, and say they forgot their ID.
Searches of laptops are ridiculous because they create volumes of additional “data” for us to search through. Rather than concentrating on legitimate intelligence gathering, such as the type that actually caught the terrorists in London who were plotting to use a liquid explosive, we’re focusing on security theater (to use Bruce Schneier’s term).
I’m all for security, don’t get me wrong. But power is prone to abuse – I’m only interested in measures that actually increase security while minimizing the impact to the privacy and civil liberties of law-abiding citizens. To allow anything else is to invite a slow descent into totalitarianism.
What you wrote about Sen. Feinstein’s bill is not exactly true. It is not reaffirming that the 4th Amendment applies at the border. According to Supreme Court precedent since 1886, in Boyd v. United States, the reasonable suspicion standard does not apply to border officials. That fact has been reaffirmed several times by the Court, such as in US v. Ramsey. The primary issue is whether searches are reasonable or unreasonable. In Ramsey, Chief Justice Rehnquist of the Supreme Court stated: “searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.†Unreasonable searches seem to be medical procedures, such as alimentary canal searches, for which the officers need a warrant, otherwise its fair game. Under the policy which has existed and been expanded since Boyd, a customs official can stop and search you for a good reason, a bad reason, or no reason at all. Sen. Feinstein’s bill is an attempt to change that policy to enforce some reasonable suspicion before the individual can be searched.
I’d like to make a slight change to my opinion above. I performed some more research and found that the legislation is probably being presented by Sen. Feingold of Wisconsin, not Sen. Feinstein of California.
Since I knew about all this stuff I don`t keep any confidential information at laptop. I keep it at my home PC and connect from my laptop after customs. It works. If interested in details, visit http://remote-access-software.net/security/reflections-about-cbp-and-remote-access.html