Border Crossings and Laptops – I don’t get it
That’s the title of my Slaw post for today. It reads as follows:
Simon posted US Homeland Security’s new rules on laptop searches for those crossing the border into the US. While there are some guidelines, they basically have the unfettered discretion to look at everything that is on one’s laptop.
Frankly, I don’t get it. It strikes me as a total waste of time and effort on their part. It inconveniences and intrudes on normal people crossing the border – with little chance of finding any terrorist or criminal information. And how are issues like trade-mark and copyright infringement relevant to crossing the border?
This strikes me as more security theatre.
The press release says in part:
“Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” said Secretary Napolitano. “The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”
Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement.
The new directives will also allow DHS to develop automated, comprehensive data collection and analytic tools to facilitate accurate, thorough reporting on electronic media searched at the border, the outcomes of those searches and the nature of the data searched—further enhancing transparency and accountability.
I tend to agree with the views of Mike Masnick of Techdirt. He comments in part:
I, like many others, have no problem with border searches of actual physical containers and luggage at the border. That makes perfect sense, because it’s physical goods that you’re purposely trying to bring directly into the country. You packed them with the specific idea of bringing them into the country.
But stuff on your laptop is different in two very important ways:
1.You mostly store everything on your laptop. So, unlike a suitcase that you’re bringing with you, it’s the opposite. You might specifically choose what to exclude, but you don’t really choose what to include.
2.The reason you bring the contents on your laptop over the border is because you’re bringing your laptop over the border. If you wanted the content of your laptop to go over the border you’d just send it using the internet. There are no “border guards” on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they’re not doing it by entering that country through border control.
Thus, it makes little sense for border control to search the contents of your laptop other than if the gov’t wants a random “free pass” at checking out some content about you.
… The whole claim that this has anything to do with screening materials entering the US is totally bogus.
As a frequent border crosser myself (I cross almost daily), I can tell you that I have never had my laptop searched at the border. Never. Not once. Not even when pulled over for Nexus compliance where they are specifically looking for customs violations.
I’m agree with Mike Masnick – there are so many ways to transfer data across a border other than on a laptop that it does seem to be a pointless exercise overall.
Comment by Debbie Westwood — September 2, 2009 @ 10:37 am
I was recently denied entry as a retired Canadian Citizen to the USA & barred from Entry for a period of 5 Years.
Upon secondary Inspection I was placed in a locked room and my Luggage inc Computer, electronic devices, sim cards etc were “searched without me being present in the room as is the law”
I was NEVER asked if I would like to voluntarily depart the USA and withdraw my entry.
I WAS REFUSED COPIES OR KNOWLEDGE OF WHAT WAS PHOTOCOPIED OR ELECTRONICALLY COPIED !
Because my possesions, computer etc were out of my possession I have no way of knowing what was copied, compromised, deleted, or installed on my electronic devices.
I fully understand the need for security and but this is trully “SECURITY THEATER”
My Computer was returned to me and at my expense I paid for the next flight from the USA to Canada.
Based on files in my laptop and my sim cards on my cell phone It was determined by the “Gestapo” that their opinion was that on previous occasions I had performed work not authorized!
Read the balnce it needs to be addressed as you could be next!!
I will continue to update as information is available.
This Information I have been able to obtain so far:
Reps. Bennie Thompson, D-Miss., and Loretta Sanchez, D-Calif., commended the administration for tightening oversight of these searches.
This new privacy impact assessment issued by the DHS Aug 25 2009 known as “PIA”
this addresses the parameters of Border Searches conducted by CBP & ICE
?? was I as a traveller “Flagged by a Law Enforcement “lookout” as a person of Interest in the computer system TECS ?
?? was the information gained from my electronic devices detained? “copies to be destroyed”
detained is cosidered If the traveller leaves the port WITHOUT THE DEVICE” (not the case).
or
was it a retention (to keep records)
?? was a CFA (Computer Forensic Agent) used
NOTE:: ONLY Certified CFA’s are permitted to make duplicate copies !!and proper destruction !!
?? was record of interaction recorded in TECHS ??
?? was notation made in CBP or ICE as ENFORCE ??
?? is record in SORNs ?(System of Record Notice)?
“” My files could be considered Confidental Business records”"
?? were any copies of records destroyed or is there a record of chain of custody ?(see infra at 10 “Destruction”)
ICE Directives require special agents to complete the search of “detained” information in a reasonable time typically 30 days
If a copy was made of data contained on the device it is called a “Gold Copy”
Under DETENTION the copy of the device or information MUST be destroyed within 7 Calander Days after such determination ?? (Who is to say when the 7 days start) ??
I was not asked when my electronic records were searched so it was impossible to state that it contained attorney-client and other privileged information !!!! as provided by which would require Supervisor contacting either Associate/Assistant Chief Counsel or US Attorneys Office.
THIS CONSTITUTES ILLEGAL SEARCH AND SEIZURE !!!!!
(PII) is personally identifiable information
TRANSPARENCY
DHS should be transparent and provide notice to the individual regarding its collection, use,dissemination, and maintenance of PII.
ICE has several SORN’s
ICE search, Arrest, and Seizure Record SORN
ICE Alien File and Central Index System SORN
ICE ENFORCE/IDENT SORN
ICE Pattern Analysis and Information Collection (ICEPIC) SORN
ICE External Investigations SORN
PRINCIPAL OF INDIVIDUAL PARTICIPATION
states that ” should the border search continue away from the traveler, the traveler will be notified if his or her electronic device is “detained or seized” I WAS NOT !
CBP DIRECTIVE NO.3340-049
violation of 5.1.4
Individual should be present in the room during a search “”"”I WAS NOT”"”"
5.2.1 Review and handling of Privileged or Sensitive Information
5.2.2 also applies to possibly sensitive information & medical records
5.2.3 business or commercial information shall treat such information as businesss confidential information.
5.3.1 Detention and review in continuation of Border Search of Information
states ” shall not exceed (5) Five Days
ICE POLICY SYSTEM
Directive 7-6.1 effective date August 18 2009
8.3 Duration of Border Search
e) Whether the traveler has taken affirmative steps to prevent the search of his or her propery in a timely fashion ??? WHAT DOES THIS MEAN BY DEFINITION????
8.5. Retention, Sharing, Safeguarding, And Destruction.
1) By ICE
e) Destruction Copies of information from electronic devices, or portions thereof, determined to be of no relevance to ICE will be destroyed NO later than 21 calender days after conclusion of the border search.
INTERESTING READING::
DHS states that “Between Oct. 1, 2008, and Aug. 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed in these instances—of those, just 46 were in-depth.”
What were the odds on my search?
I am just 1 person against “The System” but we need to rise up and protect the rights of every person in the world.
I believe the Civil Liberties Union should also be involved.
Will keep you posted
Comment by Denied Entry — September 21, 2009 @ 11:56 am