Space Aliens At The Border

As Nick Selby might remind me, it is certainly possible that a customs agent will search a smartphone or laptop and find plans for a terrorist bomb that will wreak devastating havoc. And it’s true. It’s possible. So goes the rationale for customs agents demanding passwords of people when they seek to enter the United States of America.

But what’s the authority for doing so?

Orin raises a good, but only quasi-relevant, point. Section 507(a)(2) of Title 19 of the United States Code obviously doesn’t expressly authorize customs agents to demand passwords. On the other hand, it’s remarkably unclear what that subsection is supposed to mean. Writing law is hard, and this wasn’t Congress’ finest hour.

But it’s only quasi-relevant because a customs agent at the border is, for lack of a better word, god. If he says you don’t get in, you don’t get in. If he says jump, you ask how high. The only time the statutory authority matters is when you challenge a customs agent’s demand in court, and that only happens after the shit has hit the fan.

If you get in without a hitch, you wipe your brow for having dodged a bullet and go home. It’s only when something bad happens, they seize your computer, they nab you for kiddie porn, that you are put in the position of challenging the customs agent’s actions. People who make it through without more than the serious unpleasantness of a customs agent’s demand don’t dedicate their lives to litigating their transitory detention in federal court.

But what about those beloved advocacy groups who do this sort of thing for kicks? It’s been tried. It hasn’t played out very well.

Pascal Abidor’s computer spanned the gap between the sort of stuff that a government agent might think is a problem, and the privacy a guy believes is protected from inspection, and so he took on the role of plaintiff, along with two groups that could muster arguments that should have been sufficient to get a judge to declare where the lines should be drawn.

When the case was assigned to former Chief, now Senior, Eastern District of New York Judge Edward Korman, they must have thought they hit the jackpot.  Not that Judge Korman would be easy, but that he had the guts to tell the government to get lost.  That’s about the best one could hope for.  But the opening of Judge Korman’s opinion in Abidor v. Napolitano killed any hope the plaintiffs might have had.

Since the founding of the republic, the federal government has held broad authority to conduct searches at the border to prevent the entry of dangerous people and goods. In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices, not on paper. This includes terrorist materials and despicable images of child pornography.

Michael Chertoff, Searches Are Legal, Essential, USA Today, July 16, 2008, at A10.

Nothing good ever starts with a quote by Michael Chertoff.

It only gets worse from there. The complaint in Abidor was that the search of a computer, a concept that couldn’t be further from the minds of the founding fathers, legislators or judges who established that no rights exist at the border, had nothing to do with any legitimate justification to search. And yet, there was no authority to prevent customs from demanding anything they wanted to demand, including a look at confidential information on computers.

This is enough to suggest that it would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas.

In other words, if you don’t want customs checking out your digital junk, don’t have digital junk. And this is what came of a challenge in the Eastern District of New York. Consider the real life scenario that invariably eludes academics and those who think Supreme Court decisions are the coolest things ever.

There you are, a traveler at the gates of your nation, and blocking your path is this customs agent in a uniform telling you to . . . do as he tells you. What exactly do you plan to do about it at that moment? Will you scream about your rights? Is your purpose to inflame the situation, do everything humanly possible to assure you won’t be sleeping in your own bed that night?

As strongly as you may believe, rightly or wrongly, that it’s unconstitutional for that agent, who is unlikely to have attended Yale Law School, to demand to see what’s on your hard drive, are you really interested in testing his mettle? If you end up getting hauled away in cuffs, will anybody even know what happened to you? Are you that tempted to find out whether prison rape is really a thing?

An interesting reply to Orin’s twit was whether some customs agent could demand Mark Zuckerberg’s Facebook password, the master key to all the internet has to offer. Sure. Why not? He may be the ginchiest guy to you, but he’s just another person seeking to cross the border to the government.

But if they did, maybe that would change things, because he’s got the deep pockets to raise hell and the celebrity to make a million SJWs turn out to protest the horror of it all. Maybe that would be the motivation for Congress to address the huge gap in the law that allows every customs agent to invent his own reasons for demanding whatever strikes his fancy.

After all, nobody cared what happened to Pascal Abidor when this problem came up during the past administration. And if the answer is that it’s “foolish, if not irresponsible,” to travel with things that have passwords isn’t good enough for you, it’s a shame no one outside of a handful of law nerds gave a damn at the time.

16 comments on “Space Aliens At The Border

  1. bevis the lumberjack

    “because he’s got the deep pockets to raise hell and the celebrity to make a million SJWs turn out to protest the horror of it all.”

    Probably not. The SJWs tend to flit from thing to thing, but the last I saw Zuckerberg was on their Bad List. Facebook didn’t stop Fake News, so Zuckerberg personally cost Clinton the election to which she was entitled. Paraphrasing – HE’S RESPONSIBLE FOR GIVING US TRUMP!!!

    Reply
  2. Jardinero1

    I am confident that Mr. Greenfield will consider my comment pointless or irrelevant; as well as my questions impertinent. But, who knows, I throw it out here nonetheless:

    I posit that, as people rely increasingly on the cloud to store data, the problem of searching computers will eventually become moot. A whole new quandary will arise. The problem will become, as you enter the country, can they use your device to access your cloud data. As a hypo, say a customs agent takes your smart phone and wants to see what you keep in your drop box account, via the app on your phone. The data, strictly speaking, is not on the phone. Chromebooks present the same issue. Sometimes, the data is on a server in the USA the whole time you, the phone and the app were out of the country. If the data never left the country, can customs look at it, just because you and your device left the country? What then?

    Reply
    1. SHG Post author

      First, a passive aggressive opening just make you look like a wimp. If it’s worth commenting, at least toughen up about it. Second, the rest of your comment is, as you guessed, stupid. They can ask anything. For your mother’s social security number if they want. Whether info is in the cloud or on a drive is irrelevant.

      Even more stupid, if it’s in the cloud, you’ve already given up privacy under the third party doctrine. You’re going to hurt yourself trying to figure out a way around the law when you have no clue what you’re talking about. Don’t do it. It won’t solve anything and the pain will be unbearable.

      Reply
    2. Phv3773

      More than likely, the data in the cloud will be encrypted, which leaves you back where you started: with them asking for a password.

      The whole social media thing is a farce. Terrorists are pretty sophisticated about computer stuff. They aren’t going to have anything on a phone or computer that’s easy to find.

      Reply
  3. Roger

    I have a question for the Simple Justice free legal hotline. (I’ve got the right address for that, right?) Although I practice in the wilds of Kansas City, occasionally I have to travel to Canada for a deposition. If Customs has the right to look at every piece of paper I take with me, and it would be “foolish, if not irresponsible” for me to carry confidential information in my computer, how do I preserve the attorney-client privilege and work product privilege when I depose an expert in Toronto? Do I have to leave my computer at home and just count on my flawless photographic memory to ask questions, without notes or exhibits? Although I expect a quick and thorough response at no charge, an order of Jack Stack burnt ends could go in the mail for a sufficiently detailed, well-cited response.

    Reply
    1. SHG Post author

      This is just cruel. Ninety percent of the time, it won’t happen. That last ten is what you’re fighting against. I keep a travel computer, clean of all confidential files/folders and passwords. It’s totally unprotected and has nothing of value on it beyond freecell. I use it out of the country, then wipe it when I bring it back. Not because I’m paranoid (or even have anything anyone wants to know), but because of my duty to maintain confidences.

      Of the various problems, this seems to address most. It’s just another layer of silly effort, but we do what we have to do.

      Reply
    2. Troutwaxer

      This is more a matter of computer security than legal knowledge. How do you go through a border with a blank computer, then fill it with relevant information after you’ve crossed the border? There’s lots of information available about this, and Google is your friend.*

      * You might do better on DuckDuckGo. They don’t save the content of your searches.

      Reply
  4. Keith

    I keep a travel computer, clean of all confidential files/folders

    What will happen when CPB realize you can have phantom partitions.

    I have a computer set up where if one enters one password, it shows an empty computer with some random files. Enter another password and it shows my regular desktop. There’s virtually no way you can tell it’s not the entirety of the device when I enter either password.

    I suppose it’s not worth floating a violation of 18US1001, but what if they don’t believe you anyway?

    Do they start holding everyone they think might be a problem indefinitely?

    Reply
    1. Charles

      It’s a good thing you hold this strategy with the utmost secrecy. It would be a shame if it got out publicly where any old CBP agent could find it.

      Reply
  5. Jim Tyre

    What will happen when CPB realize you can have phantom partitions.

    CBP has known about that one, and many others, for a long time. We (EFF) have been dealing with various border digital security issues for at least a decade, this is nothing new. Of course, what a specific CBP agent may do in any given circumstance varies, but it’s foolish to think that you, or anyone else, has come up with something novel and utile.

    Reply
  6. clonedaddy

    “Are you that tempted to find out whether prison rape is really a thing?”

    Why must you entice us to respond to every customs agent’s questions with insulting SHGisms just
    to see if we can get free sex?

    Reply

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