DHS Watchdog OKs ‘Suspicionless’ Seizure of Electronic Devices Along Border

[Harmon]

Putting aside the question of grabbing your laptop, it doesn't seem to me that what DHS is doing is anything different than any law enforcement officer can do anywhere in the US. For example, you can be stopped by a cop any time, and questioned. You don't have to answer. When you don't answer, the cop has to have a reason to detain you. Thing is, of course, we have so damn many laws that this is not a problem for a cop. But the cop can't just search you without reason, as a legal matter, though he'll pretend he can unless you make it clear that you know he lacks that authority.

On the border, the Customs cops know you are entering the country & can search you or your laptop, or detain you, for any reason. But you don't have to answer any questions they ask unless you want to. Eventually they will have either let you go or escalate. Thing is, they don't have to rush, and they get to hold you longer than might be convenient. If you are a legal resident, they eventually have to let you go in, but if you haven't let them search your laptop, they can keep it till the search is done. No different than if you lock your luggage - you don't have to tell the combination but they can keep your suitcase if you don't.

If there is a problem here, it is with what might be the assertion by DHS that they can behave as if you are entering the country anywhere they want. But I don't believe that's quite what they are saying. They can set up checkpoints, but I doubt that they can take your laptop without some kind of probable cause unless they know you have just entered the country.

The bottom line is that the power of a cop/border agent to stop you inside the country and then take further action is not a black & white question with a simple answer. It is a complicated question, and the answer in each situation is based on specific facts, and lies along a continuum which the cops will try to push in one direction while the ACLU will try to push in another.

But having worked as a lawyer for many years with a federal agency which has some police powers, I am quite happy to have the ACLU out there making trouble for such agencies, not because they are evil agencies, but because without pushback, they will inexorably take positions that they have authority that they really lack. It's what bureaucrats do.

[HansTWN]

Originally Posted by vxf

Just a bit of perspective: I am a foreigner (Italian) living in the USA. Thanks to the non-easy immigration process, I have been here for 15 years (with a brief break) and I still do not have residency - but a working visa. I have always been here legally and done everything by the book. I have a PhD and I teach at a major University.

So my case might be a bit peculiar. But I remember my PC/phone and other electronic equipment often being swiped and I have been asked many times to turn things on and to log in - I think to demonstrate that the devices are actually what they look like. I think this happens more often in Europe, actually. So I say... welcome to my world. But I don't understand what has changed, since they seemed to be able to do with my devices what they wanted even before. Unless I received different treatment because of nationality, which is plausible.

And yes, the 100 miles zone is very real and very arbitrary. I live in Buffalo, NY now and being pulled over for no reason is not frequent, but it happens, because of the proximity to the border. I have never been given a hard time (I don't always have my passport and visa with me). But I was pulled over in south Texas once, close to the Mexican border (in South Padre) and the officers gave me a very hard time because I did not have my passport with me (despite the fact that I was far from the border and had no intention of crossing). They finally figured out that my employment authorization card was a valid ID for their purposes and let me go, but with considerable delay. But, not familiar with the area, I was surprised that they had these random road blocks checking every car. Here in Buffalo I have not seen road blocks, but I see them pull over cars randomly for checks.

That is the nice thing about being a foreigner in Asia. Roadblock ahead -- they see me, I pretend I don't speak the local language and they wave me through without checking Used to avoid getting traffic tickets this way, too. But somehow it doesn't work anymore, now they just silently write up the ticket without talking....

[Bilbo1967]

Originally Posted by DianNC

There's case law that covers this. If you look up the exceptions to the 4th Amendment you can check it out. As I recall, a man near the Canadian border had his laptop seized and, according to him, he was 'forced' to reveal his password.

I worked for a company whose executives had reason to travel to China. It was believed that the authorities there would seize laptops and force people to input or tell them the passwords. Our techy department set up the laptops in such a way that one password worked as normal, whilst another opened the laptop up, but also deleted a 'sensitive documents' folder. It worked in testing - I don't believe it was ever actually used in reality though.

[Sil_liS]

Originally Posted by DianNC

There's case law that covers this. If you look up the exceptions to the 4th Amendment you can check it out. As I recall, a man near the Canadian border had his laptop seized and, according to him, he was 'forced' to reveal his password.

What if this is a work laptop?

Originally Posted by DianNC

I'm going to guess that our intelligence community has figured all this out. Guess it depends on their suspicions and what they're looking for, but I'm pretty sure they can keep whatever devices they seize for as long as they want.

You didn't get my point. It is easy to put files on an SD card, which is very small, and easy to hide in something as big as a car. Would they search for SD cards?

Originally Posted by Lutraa

Despite this thread's title, DHS's own Office of Civil Rights is not a "watchdog" in any conventional meaning of the term. Its relationship to the Dept. of Homeland Security is akin to the Inquisition's relationship to the Holy See. Thus its policy, which that it's OK for CBP to seize any electronic gadget being carried into the US by any traveller, citizen or not, and keep it for an indeterminate "reasonable" amount of time, should not be assumed to be the final word on the 4th Amendment.

For your reading pleasure, here is a guide for travelers entering the US who are interested in retaining electronic privacy: https://www.eff.org/sites/default/fi...r-search_2.pdf Note that the border guards cannot force you to divulge device passwords. A court could order you to provide the passwords, assuming you weren't successful in arguing your 5th Amendment self-incrimination right, but the penalty for refusing this order would be prison, not the rack (at least in theory, we haven't yet stooped to waterboarding civilian citizens).

[Note my alternating use of traveler/traveller -- I was educated in the US, Australia and Canada and spell as my mood suits me.]

The guide is dated December 2011.

[HansTWN]

Originally Posted by Sil_liS

What if this is a work laptop?


You didn't get my point. It is easy to put files on an SD card, which is very small, and easy to hide in something as big as a car. Would they search for SD cards?


The guide is dated December 2011.

It isn't any better in Europe. For a while you couldn't come back from Luxembourg to Germany in your car without being searched. And an old gentleman and his wife (both retired!) I know from work got strip searched and their car taken apart coming back from a weekend in Switzerland -- all in the name of finding bank statements, etc. Of course they found nothing.

[DianNC]

Originally Posted by Sil_liS

What if this is a work laptop?

In the case of the man near Canada, it was his work laptop. The authorities questioned him about some photos of Hezbollah rallies on his computer and he told them it was research for a school paper.

You didn't get my point. It is easy to put files on an SD card, which is very small, and easy to hide in something as big as a car. Would they search for SD cards?

I did get your point. Again, I think the intelligence community probably has it figured out and any suspicions would lead them to be very thorough. Better safe than sorry.

[DianNC]

Originally Posted by Bilbo1967

I worked for a company whose executives had reason to travel to China. It was believed that the authorities there would seize laptops and force people to input or tell them the passwords. Our techy department set up the laptops in such a way that one password worked as normal, whilst another opened the laptop up, but also deleted a 'sensitive documents' folder. It worked in testing - I don't believe it was ever actually used in reality though.

If I ever decide to write a political thriller, I'm stealing that!!

[Kumabjorn]

Originally Posted by HansTWN

It isn't any better in Europe. For a while you couldn't come back from Luxembourg to Germany in your car without being searched. And an old gentleman and his wife (both retired!) I know from work got strip searched and their car taken apart coming back from a weekend in Switzerland -- all in the name of finding bank statements, etc. Of course they found nothing.

They can stop you when going from Luxembourg to Germany? Isn't Luxembourg a signatory to Schengen?

[HarryT]

Originally Posted by Kumabjorn

They can stop you when going from Luxembourg to Germany? Isn't Luxembourg a signatory to Schengen?

I was wondering the same thing myself. I've been to Luxembourg myself on several occasions, and there certainly aren't any border controls any more.

[HansTWN]

Originally Posted by Kumabjorn

They can stop you when going from Luxembourg to Germany? Isn't Luxembourg a signatory to Schengen?

They didn't stop people AT the border, but rather a short stretch down the road inside Germany.

[Sil_liS]

Originally Posted by HansTWN

It isn't any better in Europe. For a while you couldn't come back from Luxembourg to Germany in your car without being searched. And an old gentleman and his wife (both retired!) I know from work got strip searched and their car taken apart coming back from a weekend in Switzerland -- all in the name of finding bank statements, etc. Of course they found nothing.

So that makes it OK?

Originally Posted by DianNC

In the case of the man near Canada, it was his work laptop. The authorities questioned him about some photos of Hezbollah rallies on his computer and he told them it was research for a school paper.

I meant laptop given by an employer.

Originally Posted by DianNC

I did get your point. Again, I think the intelligence community probably has it figured out and any suspicions would lead them to be very thorough. Better safe than sorry.

I doubt that they have it figured out. They would have to disassemble the car.

[HansTWN]

Sil_lis, that is a big misunderstanding, I definitely did not mean to imply that it is ok, just the opposite.

[DianNC]

Originally Posted by Sil_liS

I meant laptop given by an employer.

From the government's standpoint, that's the beauty of the constitution-free zone policy. Laws that apply outside the zone aren't relevant and that's the exact point of the policy.

I doubt that they have it figured out. They would have to disassemble the car.

Oh. I bet that's never been done before.

[Lutraa]

Originally Posted by Sil_liS

It is easy to put files on an SD card, which is very small, and easy to hide in something as big as a car. Would they search for SD cards?


The guide is dated December 2011.

Two things:

1) Never, ever lie to the Border Patrol. If you do and they find the SD card or whatever you're trying to hide, you are in big trouble. You already have the right to refuse to answer questions. Use that right instead of committing the crime of knowingly making a false statement.

2) So, the guide is 14 months old. Did you read it? Are there things in it that are no longer true? I think the examples of travellers who might want to avoid hassles are still relevant (e.g. journalists researching stories on America's "enemies" and medical professionals who are required by US law to protect patient record privacy) and the techniques for ensuring you aren't carrying any such data on electronic devices upon entry/re-entry to the US are still sound.

Most of us have no sensitive data on our eReaders or laptops, but it could still be a serious inconvenience to have these devices confiscated for days or weeks. Anyone who has already been mistakenly fingered on DHS watch lists -- and these databases are notoriously rife with uncorrected errors -- might want to take some of the precautions recommended in the EFF guide in order to head off the hassle of losing their laptop on the way to a conference, or their eReader at the start of a vacation.

[pdurrant]

Originally Posted by Lutraa

1) Never, ever lie to the Border Patrol.

Indeed. This applies to any law enforcement officer. Much, much better to say nothing than to lie.