Having your laptop searched at the US border – legal or intrusive?

By Mark O’Neill

Boing Boing has highlighted an interesting page on the Electronic Frontier Foundation website which talks about a recent court ruling – United States v. Arnold – which essentially allows US border guards to search your laptop or other digital devices without legal restraint if you try to enter the United States.

This has got a lot of civil liberties groups up in arms (or as South Park likes to put it, “rabble! rabble! rabble!”), as obviously the contents of your laptop are private. You could have sensitive business information on there. For example, what if you’re a lawyer and you have confidential client information that you can’t reveal to a third party? Or on a personal level, perhaps embarrassing stuff like kinky porn which technically may be legal under the US constitution to own and look at but obviously you don’t want a border guard finding it on your computer? You might even have something REALLY downright embarrassing and reputation destroying like some Britney Spears music from iTunes.

So are there any legal ways or crafty dodges to get around this obvious violation to your privacy and civil liberties? Plus is this court ruling right? Could it be open to an appeal?

As the EFF page says, the obvious way to hide anything on a computer is encryption. If I was approaching a border and I knew my computer was going to be looked at, I would encrypt everything beforehand. But then again, an encrypted folder is a red flag to a law enforcement officer. It’s the equivalent of saying “look! I’m hiding something!”. But then I would say that this would only be a problem if you put the encrypted folder in plain sight – so hide the damn thing! I normally hide all my encrypted folders inside installed software folders and make them look like part of the software installation. Unless the stressed border guard is extremely computer savvy, how are they going to know the difference between an encrypted Truecrypt folder and a software installation folder for say Pidgin or Photoshop? Would he / she have the time to go through each and every folder and examine each one? I sincerely doubt it.

But then if the border guard DOES find an encrypted folder, do you give up the password? This is the big question isn’t it? Would YOU give up your password? Some travellers may be inclined to, just to get on their way. But the law may be on your side if you choose not to. Earlier this year a judge ruled that a man accused of having child porn on his encrypted computer was not compelled to hand over the passwords to his encrypted folders – because it would incriminate himself. Welcome to the digital 21st century. As law enforcement agencies are discovering, they are not automatically entitled to people’s passwords just because they have a badge and a gun.

If you refuse to hand over your password, at worst, all the border agents can do is turn you away from the border and refuse you entry – if you are a foreigner to the United States. If you are a US citizen, I would imagine a court appearance is not out of the question. But I would love to know what the charges would end up being – and whether the case would stand up in front of a jury. Failure To Provide A Password In The First Degree? Come on, give me a break. Go out there officer and catch some real criminals for crying out loud. Legal geeks – what’s your interpretation of this situation? A waste of taxpayers money or a matter of legal principle?

To the rest of the GAS readers – what are your thoughts on this subject? Have you taken your laptop through a border and have had to give up your files for inspection? Do you have any ingenious ways to hide digital information from prying eyes? And if push came to shove, would YOU give up your password?

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