From Laptops to Letters, Beware the Border Search

When Homeland Security Czar Michael Chertoff explained the need to search laptop computers to preserve the safety and security of the union, it appeared to reflect the government’s venture into hi-tech snooping by capitalizing on the antiquated rationale for unlimited border searches.   But based upon a 10-1 decision out of the 9th Circuit in its en banc rehearing of its decision to uphold the search, the problems runs deeper.

From the San Francisco Chronicle, the court held that agents could read personal letters during a border search without any basis or evidence of wrongdoing. 

The court majority noted that an international airport is considered the equivalent of a national border and said airport officers need no evidence of wrongdoing before conducting searches, as long as they are not “unreasonably intrusive.”

In upholding the initial search, the court noted that inspectors were entitled to conduct random searches of the packages and said they were not obliged to “disregard evidence of other unlawful activity.”

This is yet another example of the remembering the rubric while forgetting the rationale.  The reason that border searches were denied any protection was not because constitutional rights were no longer inherently worthy, but because there was a need to prevent avoidance of untaxed goods from entering the country and disease-ridden things (whether people, animals or plants) from infesting our great plains.

But this rationale came at an earlier, more simple age.  The border search was not intended as a general crime search substitute, simply because of the lack of expectation of privacy.  Yet that’s where it’s gone.  And now we’re coming full circle, from the hidden porn on laptops to the content of personal letters.  Certainly, there is no border protection purpose to be found in private letters, lest someone attempt to attack another by threat of a paper cut.

Only one judge stood up against this holding, Chief Judge Alex Kozinski. 

In dissent, Chief Judge Alex Kozinski said the court’s rationale was dangerous, even though Seljan got what he deserved. By allowing agents to read the letter without a warrant or evidence of wrongdoing, he said, the ruling gives them “a green light … to go on fishing expeditions through all private papers and electronic documents that are sent or carried across our national borders.”

At Met News, there is a lengthier description of the dissent:

Kozinski argued in dissent that the search violated the Fourth Amendment’s guarantee of the “right of the people to be secure in their…papers.” While the court’s “reluctance to step between Mr. Seljan and his well-merited punishment is understandable,” the chief judge wrote, “this result comes at a high price.”

The majority, he said, was turning what the court has previously described as a “narrow” Fourth Amendment exception into “a gaping hole” that would allow “every e-mail, every diary, every laptop that crosses the border” to be inspected and read “without a warrant or even founded suspicion.”

Kozinski cited the infamous “Wilkes affair,” in which private papers were seized under general warrant in 1760s England in order to build a case of seditious libel against a leader of the political opposition. The actions led to a series of decisions holding that English common law did not permit such seizures.

“We sell this birthright very cheaply today,” the jurist wrote.

Perhaps Judge Kozinski has a greater appreciation of the privacy of one’s papers and effects, having been on the receiving end of disclosure of some personal photographs.  There’s nothing like public disclosure of highly personal things to enlighten one to the finer points of privacy.

Regardless of how Judge Kozinski came to this conclusion, his lone voice in dissent is worthy of heed.  We’ve sold off many of our birthrights lately, and it’s going to be awfully hard to get them back.

10 thoughts on “From Laptops to Letters, Beware the Border Search

  1. sue

    i’ve had my laptops searched on one occasion &, even though i have nothing at all to hide, have felt violated by this.

    it feels like another thing that hits ordinary people, while anyone with anything to hide will find a way around it (eg camera memory cards hidden in hold baggage, usb keys mailed ahead et cetera).

    thanks for the insightful post.

  2. Daniel

    The real troubling thing about this ruling (except for the dissent, which was right on) is that it could be expanded to the *electronic border*. What is to stop the government from now saying that every financial transaction, every e-mail, every data transfer that crosses international borders cannot be looked at for illegal activity? Nothing that I can see.

    Most smart people are simply encrypting their documents and then either e-mailing them or storing them on a on-line website that offers file hosting and then picking them up at the other end. Since so much is digital now, and the WWW is truly world wide, that is the real border we have to be most concerned about.

  3. Gregory Conen

    Even encrypted data is not safe crossing borders, given the virtually unlimited power of seizure at the borders.

    If you have information that must remain secure, and must cross a national border, don’t carry it with you. Leave the laptop at home, or carefully erase (don’t just delete) all the confidential information, and get the data via an encrypted communication channel.

  4. Daniel

    Gregory. You are missing the point. In theory, the government could block an encrypted communication channel. It’s child’s play to sort it out from regular traffic. There is nothing now to stop the government from saying, either decrypt the data or we will block the internet traffic at the border. Since the overwhelming majority of internet data crossing international borders is unencrypted, such a policy is not very likely to raise much of a ruckus for the ordinary person.

  5. Joel Rosenberg

    [Encrypted traffic is] child’s play to sort it out from regular traffic.

    How so? What in a packet or datagram that’s encrypted is obviously different from one that isn’t?

  6. Daniel

    The easiest way is to simply assume that anything random-looking is encrypted. This of course, would include data which is not encrypted such as compressed files. But who cares? Since you are at the border and and the government can now see whatever it wants, it doesn’t have a false positive problem. If the network specialists using their tapping and sniffing programs can’t tell what it is (it’s not in plain text) they simply block it. You no longer have a constitutional right to send something across the border the government can’t see.

  7. SHG

    While you raise a very interesting problem, it is legally disconnected from the border search issue, the “entry” of communications being entirely different from the physical entry into America.

    The problem that the government would face with such pervasive control is that it would impact too many people.  The beauty of most of these regulations is that while it “could” impact wide swathes of society, it generally touches very few people in reality, whether because the government can’t mount the effort or they just limit its exercise to those whom the government really wants to get.

    But, that’s not to say that the tide won’t continue to come in, and encrypted communications will be stopped at the border, for our own safety I’m sure.

  8. Gregory Conen

    Because, unless someone knows you, your encrypted data looks more or less than same as everyone else’s.

    If a government really wants to deny service, it can. But most won’t; the risk of having encrypted data “seized” over at the border is higher than over the internet.

    Further, securing data in compromised hardware is much harder. Reading encrypted data without the key is very hard. Breaking a password (Unless you want to actually memorize a 256+ bit key) is significantly easier.

  9. Daniel

    It simply isn’t true that encrypted data electronically sent overseas all looks the same. For example, the SWIFT system used for international banking is an entirely different physical system than the Internet. As for the Internet proper, the encrypted traffic that comes from encrypted Bittorrent or P2P like OFF and Freenet doesn’t look the same as SSH. They all use different encryption algorithms and thus all have unique entropy profiles. I’ll admit that this type of analysis isn’t the easiest thing to do in real time, but if screws were put to the ISP they could detect and block a specific class of encrypted data, even from a single user.

    IANAL but I don’t see anything that stops the government from now arguing that it has a heightened concern that encrypted BitTorrent is being used for illegal activities and demand that it be decrypted at the border. It’s not the type of scenario that will affect many people and would win them much applause from the RIAA.

    While it is true that at the present moment there is a greater risk of data being seized at the physical border, this is a game of cat and mouse. The more the government cracks down there, the more that people will seek an alternative; the government will eventually follow where ever they go.

    As I see it, this court decision is really laying the intellectual groundwork for electronic seizures, as the dissent seems to recognize. As SHG points out, whether the government will actually do this is an open question; it may never do so. My point is that the government has the technological ability to do so if it so choses. And the more the legal framework crumbles, the greater the odds become that it will in fact do so.

  10. SHG

    Daniel, let’s try not to stray to deeply into the geek end of the pool, as this is a law blog, not a computer blog.  One aspect of your comment needs to be addressed.  There is nothing in the dissent that suggests in any way that this ruling has any applicability to date crossing borders, and the law of border searches has absolutely nothing to do with this.  Zero.  Nor is there any suggestion that it could ever have anything to do with this. 

    If it conceivably should happen, it will not be because of this decision, any other border search decision or the law regarding border searches.  So let’s put this connection to rest.  There is no connection between border searches and your concerns.

Comments are closed.