It may have been little more then an intimidating demand from businesses at ACTA negotiations, but now the Department of Homeland Security is saying that copying hard drives and iPods at the US border is now part of border security policy without suspicion of wrongdoing.
It seems to be the trend for US authorities and lawmakers – act first, legalize later. A little over a month ago, the EFF was demanding an investigation for suspicionless laptop searches at the border. Now comes word that the Department of Homeland Security has made laptop searches and iPod searches (aka digital frisking) part of border security policy.
It’s all found in the 3 page policy (PDF – hat tip Slashdot for the link) which contains the following:
This policy provides guidance to U.S Customs and Border Protection (CBP) Officers, Border Patrol Agents, Air and Marine Agents, Internal Affairs Agents, and any other official of CBP authorized to conduct border searches (for purposes of this policy, all such officers and agents are hereinafter referred to as “officers”) regarding the border search of information contained in documents and electronic devices. More specifically, this policy sets forth the legal and policy guidelines within which officers may search, review, retain, and share certain information possessed by individuals who are encountered by CBP at the border, functional equivalent of the border, or extended border. This policy governs border search authority only; nothing in this policy limits the authority of CBP to act pursuant to other authorities such as a warrant or a search incident to arrest.
In other words, they don’t need a warrant or some form of suspicion in order to conduct searches. They can conduct the searches arbitrarily if they so desire. So what are they looking for?
CBP is responsible for ensuring compliance with customs, immigration, and other Federal laws at the border. To that end, officers may examine documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices. These examinations are part of CBP’s long-standing practice and are essential to uncovering vital law enforcement information. For example, examinations of documents and electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary
instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.
So buried in all of that is copyright and trademark related issues. So for example, if your iPod contains a song that was not available on iTunes, it could very easily be considered copyright infringement. the policy continues withthis:
Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.
Translation and Decryption. Officers may encounter information in documents or electronic devices that is in a foreign language and/or encrypted. To assist CBP in determining the meaning of such information, CBP may seek translation and/or decryption assistance from other Federal agencies or entities. Officers may seek such assistance absent individualized suspicion. Requests for translation and decryption assistance shall be documented.
It is also noted that when the data has been received and analyzed by an “officer”, it’s only then that the concept of suspicion kicks in. If, say, a file on ones laptop was “suspicious”, then enforcement can take place on that individual. How exactly this protects individuals from fourth amendment rights which guards against unlawful search and seizure is just about anyones guess, but judging by the way this policy was framed, it’s unlikely that it adequately does when property has been seized without suspicion.
US media picked up on the story (via BoingBoing) describing the new policy with the following:
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.
The report notes that Senator Russell Feingold (Democrat from Wisconsin) said that he would introduce legislation that would require suspicion before a digital search can even start (as opposed to afterwards as noted by the DHS policy) the report also contains this:
“They’re saying they can rifle through all the information in a traveler’s laptop without having a smidgen of evidence that the traveler is breaking the law,” said Greg Nojeim, senior counsel at the Center for Democracy and Technology. Notably, he said, the policies “don’t establish any criteria for whose computer can be searched.”
Customs Deputy Commissioner Jayson P. Ahern said the efforts “do not infringe on Americans’ privacy.” In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had “plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant” to prevent drugs and other contraband from entering the country.
Canadian media outlet CBC also picked up on the story. Unsurprisingly, Canadians are not amused by the new developments.
charles_montreal commented, “oh, boy. Parents…you better watch your kids bringing laptops on your holidays to the States. With all the music and movies kids download these days, the whole family may end up in the clink.”
DanielGoodchild says, “My last trip to the U.S. was just a couple of weeks ago – and I do mean my LAST trip.”
What’s interesting is that the intrusive laptop searches case dates back to February while the policy was dated July 16, almost half a year later. It makes one wonder if the previous laptop searches were completely illegal, even under DHS guidelines.
There are many concerns surrounding this outside of copyright related issues. For instance, what about attorney-client confidentiality? What about confidential notes for reporters?
It also makes one wonder if the United States can really afford this new searching procedure in the face of near record breaking national debt (refreshing the page will update the clock)
There is currently no word yet on how groups like EFF and the ACLU will respond on the new development.
Related Posts
- EFF Demands Investigation for Suspicionless Digital Searches at Border
- MPAA Wins Copyright Infringement Case Against TorrentSpy
- Filesoup Admin Busted for Copyright Infringement
- Guns N’ Roses Sued for Copyright Infringement
- Can the RIAA Sue for Attempted Copyright Infringement?
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They just want to enlarge their music collections.
So if I encrypt my entire system then cross the border would that be considered suspicious and warrant my laptop being confiscated and decrypted? If there are naked pictures of someones g/f or wife on the device and they randomly search it is that lawful? It will be interesting to see the first lawsuit that arises from these searches .
@mountain_rage
basically yes but it doesn’t say they can search the whole vehicle now dose it?…I’m sure there are still plenty places to hide a small laptop and flash drives about the interior…like duck tape it under the seats at the back of the dash board etc… Or maybe have the lap top sent to your new location in it’s original packaging and have someone pick it up at the post office before you go on you’re travels… think about about it they essentially have the right to confiscated any electronics with storage capacity and keep it until you get back to the states and god knows what they do with you personnel information when they find it…very shady!
Home of the Free. ???.
Somehow I doubt Homeland Security is interested in enforcing copyright law more than sniffing out potential threats to national security. Two dozen mp3 files downloaded from torrent-whatever need not apply. Sure detain a suspect that’s trying to move 250 copies of the R5 Hancock DVD or 300 counterfeit copies of Microsoft products. And let’s not leave out actual suspected terrorists traveling abroad. To think an agent will conduct an investigation over a teenagers iPod filled with the latest mainstream radio trash is obsurd. Can anyone here tell us just how an agent would come to the conclusion that a song or encoded film was illegally obtained? Would clues lie in the software installed on your laptop or perhaps meta tag fields within the files? Who’s to say the suspect didn’t use one of the dozens of commercial “rippers” available to encode a legally purchased CD? Yes let’s discuss forensics. Or are some of us still under the impression that “they” use technology engineered from Area 51?
@Drugshovel
The problem with this country is that we have TOO many freedoms. We’re the most free in the world. We’re a nation of spoiled brats run by spoiled brats. Don’t like it? Leave. You’ll be back in six months. In the mean time let’s all continue to download pirated material at our heart’s content.
Hmmm… I think that there is maybe a little more to this than meets the eye – and I’m not referring to any conspiracy theories about shape-shifting illuminati or things of that nature but more about certain commercial interests using their might to manipulate politics.
The fact that this information has been publicised is probably to make people aware that this procedure exists in the first place (Probably more of a scare tactic. Obviously US customs aren’t going to have the time or the staff to search every laptop or iPod that comes across it’s borders but it wants you to think that maybe it does). More and more citizens of the world are made to believe that privacy is a bad thing…. that anyone wanting privacy must be up to no good. Ultimately all that will happen is that the real criminal element will go further and further underground and all that will be left are the decent citizens who maybe fracture a minor law or two in their lifetimes and are criminalised for it. Let’s face it imagining for a second that you are a terrorist travelling abroad are you really going to take your evil plans with you on your laptop (Encrypted or not)?
Most of the pressure on Intellectual Property issues (Where I figure that quite a bit of this is directed) stems not directly from the government but from pressure exerted from the Content providers themselves. Now we’re not talking about small time artists or independent filmakers who incidently have benefitted immensely from Internet distribution but large scale commercial organizations who want their content marketed in certain ways to protect their profits and satisfy their shareholders. They employ huge pressure groups (RIAA MPAA BPI IFPI etc. etc.) who in turn lean on the governments to protect their assets. Look up the recent events with UK ISPs to see where I am coming from.
@wapazoid The concept of “Freedom” in the US consists of some basic fundamentals: Freedom of expression opinion speech and movement. Are you saying that you have too much of that? Maybe you need some more new laws?
Drugshovel how do you know “We’re the most free country in the world”? Have you ever live in any other country?
@Simpsim
I’d consider myself a reformist other than democratic or republican. Does that answer your question? As for the fundamentals where do lines get drawn… particularly in this day and age? Personally I’m not against random searches through digital media. How different is it than going through your wife’s underwear at the airport? Yes it’s an inconvenience for most but I believe the act does more good than harm. I don’t think Osama is going to turn the US & UK into a staging ground for the sci-fi NWO. But I feel we need many new laws that some would scream at the top of their lungs about. For example:
Should protestors have the right to disrupt commerce in city streets waiving foreign flags?
Should single mothers or families on welfare be allowed to have as many children as they wish?
Should illegal immigrants be allowed amnesty?
Should bilingual lessons be taught in public schools?
Should minors that commit gang-related murder be omitted from adult sentencing including the death penalty?
So far I’ve answered “no” to all of these. Does that make me a racist fascist or dare I say Nazi? I’m sure some would say “absolutely”.
barbanza “Drugshovel how do you know “We’re the most free country in the world”? Have you ever live in any other country? ”
I guess you have never heard the slogan “America Home Of The Free” And not that it matters but yes I have lived outside of the US.
wapazoid -”The problem with this country is that we have TOO many freedoms. We’re the most free in the world. We’re a nation of spoiled brats run by spoiled brats. Don’t like it? Leave. You’ll be back in six months. In the mean time let’s all continue to download pirated material at our heart’s content.”
To Many freedoms is a problem. Wow. I hope you are part of a small group that think that way. I think may be you should leave if having to many freedoms is a problem for you. But I guess the way things are going you will have your way. And when it does and you are sitting in jail because of an illegal search of you home and computer for all your pirated material. You can pat yourself on the back for a job well done.
Oh look another sci-fi NWO fan. Do you really think state or federal law enforcement will be commissioned as watchdogs for “hot” mp3’s? I don’t know fill out a few more W2 forms pay your own way through college attend a few local city council meetings. Something will click. I’m just part of a small group that isn’t afraid to openly admit it.
Home of the free and fantasyland is the same word it isn’t it?
Every european that left this country I don’t see them coming back so to know if one country is the best or has the most freedoms I guess we have to live in many counries before we make that statement.
Carry on Sir
I still find you amusing barbanza. Are you still angry about being picked on in high school by your teachers? Shall I call you a whaaaambulance?
Wapazoid me angry? Nope should I be?
There is not point in been angry well you woulnd’t know would you? Thank God that been an american you know how to read oh yeah land of the free that must be the first sentence you learned ever now you have to learn this one ” I am proud to be an american” Go ahead a few words and you are there…