You, yes you and your gadget may be subject to search and seizure without protection of the Fourth Amendment. The Department of Homeland Security (via Threatpost 2/11/2013) has just posted an assertion that “current border search policies comply with the Fourth Amendment”. However, the PDF is time-stamped 1/29/2013. The assertion is, of course, in relation to (border) searches completed (not always – see video) by the Customs and Border Protection and Immigration and Customs Enforcement officers. Your laptop, device or perhaps any gadget may be subject to “suspicionless” searches of electronic devices.
The PDF further references the 2009 CBP Directive No. 3340-049 (Border Search of Electronic Devices Containing Information) and ICE Directive 7-6.1 (Border Searches of Electronic Devices). The DHS concludes that this gives ‘governing authority to review, retaining and searching of such devices and does not violate the First Amendment ‘. The post declares that the Directives appropriately address the need for special cautions with privileged data and information. This would include sensitive legal, medical, business and other records. Well, one would hope so.
The problem is (per Threatpost yesterday) is that these kinds of searches and seizures can and do happen. The ACLU is suing over these instances where First and Fourth Amendment violations could have taken place. They also filed a FOIA request for the full DHS report related to the somewhat troubling memo of 1/29/2013. The DHS post we and Threatpost have been referring to is only an “Executive Summary”. Threatpost pointed us to a PDF from the Electronic Frontier Foundation and their guide to traveling with digital devices.
Protecting your device and data at the border – or even inside the border – may not be easy. We notice in our small town that the CBP has had an officer present since about last year. There is no international border in our part of the suburbs but we’re guessing the CBP has legal authority to pull over “suspicionless” suspects and search/seize their portables. What else can you do? If you look for online advice you will see that some businesses are now transporting only blank devices without data. Another piece of advice from the EFF PDF – have the home office transmit the passwords including decryption/encryption to your device. The claim is that the CBP and ICE have been demanding passwords as well.