I have NO sympathy for low lifes into child pornography, but this article from today's New York Times is interesting for other reasons. All of us cross borders with our laptops, but did you know that in the US, customs officials can search your laptop if they don't like your looks.

By ADAM LIPTAK

A couple of years ago, Michael T. Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called “Kodak pictures” and “Kodak memories,” the officer found child pornography.

The search was not unusual: the government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer’s hard drive, the government says, is no different than looking through a suitcase.

One federal appeals court has agreed, and a second seems ready to follow suit.

There is one lonely voice on the other side. In 2006, Judge Dean D. Pregerson of Federal District Court in Los Angeles suppressed the evidence against Mr. Arnold.

“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”

Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and — the clincher, of course — information about reporters’ “confidential sources and story leads.”

But Judge Pregerson’s decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., took that position in a 2005 decision. It upheld the conviction of John W. Ickes Jr., who crossed the Canadian border with a computer containing child pornography. A customs agent’s suspicions were raised, the court’s decision said, “after discovering a video camera containing a tape of a tennis match which focused excessively on a young ball boy.”

It is true that the government should have great leeway in searching physical objects at the border. But the law requires a little more — a “reasonable suspicion” — when the search is especially invasive, as when the human body is involved.

Searching a computer, said Jennifer M. Chacón, a law professor at the University of California, Davis, “is fairly intrusive.” Like searches of the body, she said, such “an invasive search should require reasonable suspicion.”

An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government’s ability to acquire information.

“Under the government’s reasoning,” the brief said, “border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign.” That is, the brief said, “simply electronic surveillance after the fact.”

The government went even further in the case of Sebastien Boucher, a Canadian who lives in New Hampshire. Mr. Boucher crossed the Canadian border by car about a year ago, and a customs agent noticed a laptop in the back seat.

Asked whether he had child pornography on his laptop, Mr. Boucher said he was not sure. He said he downloaded a lot of pornography but deleted child pornography when he found it.

Some of the files on Mr. Boucher’s computer were encrypted using a program called Pretty Good Privacy, and Mr. Boucher helped the agent look at them, apparently by entering an encryption code. The agent said he saw lots of revolting pornography involving children.

The government seized the laptop. But when it tried to open the encrypted files again, it could not. A grand jury instructed Mr. Boucher to provide the password.

But a federal magistrate judge quashed that subpoena in November, saying that requiring Mr. Boucher to provide it would violate his Fifth Amendment right against self-incrimination. Last week, the government appealed.

The magistrate judge, Jerome J. Niedermeier of Federal District Court in Burlington, Vt., used an analogy from Supreme Court precedent. It is one thing to require a defendant to surrender a key to a safe and another to make him reveal its combination.

The government can make you provide samples of your blood, handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you, Judge Niedermeier said.

“The core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt,” Michael Froomkin, a law professor at the University of Miami, wrote about the Boucher case on his Discourse.net blog.

But Orin S. Kerr, a law professor at the George Washington University, said Judge Niedermeier had probably gotten it wrong. “In a normal case,” Professor Kerr said in an interview, “there would be a privilege.” But given what Mr. Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.

There are all sorts of lessons in these cases. One is that the border seems be a privacy-free zone. A second is that encryption programs work. A third is that you should keep your password to yourself. And the most important, as my wife keeps telling me, is that you should leave your laptop at home.

[ Last edited by  Marsupial at 8-1-2008 12:24 ]

This lesson is especially important for the US borders. US law is quite tough against child pornography. When in doubt, don't risk it. The notebook that travels with me around the world is for business only. For access to "private" hobbies, I use my local units. That is why I don't access this site when I am at a location without a local computer. It's always better to be safe than sorry. (and you sleep better at night, and ML better when you play)

If you have sensitive info, you can encrypt/compress the file(s), rename the archive to something inocuous (e.g. *.dll) and put it in a system folder (e.g. C:\windows\system32). It is a shame that the cases making jurisprudence are concerning child pornography instead of less subjective matters such as a reporter sources or trade secret data.

There was a related case in Canada where a (very stupid) man brought his computer for tech support at a shop and the technician found child pornography. I personally would like both of them to suffer consequences: the pig and the nosy technician who have no business whatsoever browsing client files.

My laptop is an extension of my life. It contains elements of everything that are important to me: private correspondence, all of my email via Outlook Express, future projects, thoughts on various issues, economic and tax records, pics and videos, music, software, the list is endless. There is nothing technically illegal on my computer, certainly no child porn, but the idea that some customs inspector could open up my laptop and spend an hour browsing through all of my personal records is very disturbing. Going through my suitcase looking for drugs, guns, etc. is one thing, searching my laptop is far more personal and I would feel violated.

However, it turns out that US customs can also seize your laptop. Read this article from CNN

_________________________________________________________________________

LONDON, England (CNN) -- Is looking inside a laptop the same as opening up a suitcase? In the eyes of U.S. federal law they are.

Frequent flyers might be surprised to learn that American legislation allows customs and border guards to confiscate anyone's laptop without any ground for suspicion and copy all the information held within it.

Seized laptops and copied hard drives seem like business travelers' apocryphal stories, but the issue was recently brought to light by the Association of Corporate Travel Executives.

Their informal survey of 2,500 international members found that 90 percent did not know that U.S. customs officials had the right to scrutinize, copy or even seize laptops without having to give a reason.

The broad powers enabling customs and border guards to do this dates back to 1985 and both U.S. and foreign nationals are equally subject to the law.

Only one percent of those surveyed claimed to have experience of this happening, but industry experts agree that this does not mean there should not be some cause for concern.

"It might not be a common occurrence, but the fact that it is happening at all should make everybody pause. The increased use of this law might be part of the post 9/11 vigilance from customs and border guards, but it could be seen that confiscating laptops goes beyond its proper use," John Gurley of Washington D.C-based law firm Arent Fox PLLC told CNN.

Arent Fox are currently representing one traveller who had their laptop seized, its contents copied and then returned a week later, but he has heard of numerous other cases.

One woman from the ACTE survey said she had been waiting a year for her laptop to be sent back. Aside for the inconvenience of having to surrender a laptop for an indefinite period of time and the huge disruption it would cause to a business trip, there is also a question of privacy.

"Currently we don't know what happens to all the files and information that is copied by customs once a person is not found to have anything incriminating. This is something that needs to be resolved, as there remains the threat of misuse. The one thing that is certain is that the customs and border authority can share the information with all other U.S government agencies," said Gurley.

A court ruling in California earlier this month found that laptop searches were a serious breech of privacy and not part of a routine search. The U.S. government has challenged this ruling.

"Confidentiality is threatened. A person's sensitive business or legal documents and personal financial information are often keep on a computer," said Gurley.

While the ACTE are not questioning the validity of the law, Greeley Koch, president of the ACTE, suggests that frequent flyers shouldn't have anything on their computers that they would not want anyone else to read.

"This includes proprietary corporate information and personal data," he said at a recent conference.

A third of the ACTE's members said they already had policies limiting the type of information that can be stored on a laptop - they were in place to counter the threat of theft -- but now more business travellers will have to pause for thought about what's on their hard drive.

[ Last edited by  Marsupial at 8-1-2008 11:16 ]

I don't know why you're surprised bro - this is just the way of the world. When people get a little power, they always
abuse it. That's why an independent legal system is so important. The courts are often our only defence against the
bastards who rule us. And it's why we need democracy - not because it's a great or even an efficient way of running a
country - but just so that we can get rid of the bastards every few years.

When they can read your mind bro - they'll do that as well and put you in jail just for what you're thinking.

And the English-speaking countries seem to be the most intrusive of all the democracies. A Greek or German has far more legal protection against unchecked government snooping into his private life. London has the highest concentration of video surveillance cameras in the world. And I have read that the the English police can, at any time and without court approval, require it's citizens to supply email account passwords. The US government has computers listening to all of your cell phone conversations.

I've got a good English friend who says he doesn't worry because the people handling the info are too incompetent to actually cause any harm. Beyond the incompetence itself causing harm, that's like saying there is a sniper on the roof, but not to worry, he's a bad shot.

Your friend is correct about the incompetence part

Your friend's an idiot. It's that kind of incompetence that resulted in a yound Brazillian guy being shot dead on the London
Tube earlier this year when he was mistaken for a suicide bomber. As far as I recall, not one copper was even reprimanded
over the incident. The Chief of Police did apologise though.    

Human error is unavoidable. However, broad inspection power in the wrong hands can be a real problem to society in general.

There're a few easy ways to hide your stuff in your laptop while traveling (not that I'm advocating any illegal activities)

1. Use a remote control software, if a decent net connection is available, just remote back to your home PC and do things and the rest in web based apps and use software like Windows Washer to clear stuff after every session.

2. Use a Virtual Machine, like VMware, just run all your private stuff in the VM, you can even encrypt the VM partition, and since it'll only use 1 file as the VM partition in the base PC, nothing will show up on even deep scans, just don't put the VM icon right on the desktop.

3. Use a lesser known web browser, like Opera, it's in line with a saying in the IT world "security through obscurity"

Interesting idea using VMware. Good encryption software is freely available. And I can access my home computer using a prog called RealVNC. There is even a Firefox extension that lets you use your Google email account for storage.

But if the Feds don't like your haircut, you could still lose your laptop for a few mths.

I don't actually have anything on any of my computers that is illegal, it's just the whole idea of the thing that pisses me off.