There was an editorial in the NY Times yesterday about the fact that the border guard can boot your laptop, confiscate it, etc. without having any reason to be suspicious. I’m not saying it is common and it has never happened to me. But suppose my laptop required a password to boot, could they force me to reveal it? What could they do if I refused? I do cross from Canada to US (and back) a half dozen times a year, invariably with my laptop. They would mathematics on it, which I suppose they could suspect was a code. I’ve met some pretty unpleasant guards in my time (along with many very pleasant ones, to be sure).
Assuming ample time, I could get into any password protected laptop. You’d need to at least encrypt it. And, even better would be to use stealth encryption.
EDIT: Obviously, I know nothing about the law.
Force you? I doubt it. But they can refuse you entry.
In another thread one of our resident attorneys, Bricker, claims that there is no question that they have the right to “search” your computer. That seems to include preventing its entry, which may involve seizing it or telling you to go back to where you came from. IANAL, but I am doubtful that your cooperation in the search is required, as it may mean self-incrimination. So they can use whatever tools they have available to get to the data on your laptop.
Here’s alink to the editorial
The contention is that American border guards may prevent an American citizen from carrying unapproved information content into the United States?
Suppose I have a book written in a personal code. The border guards can examine the object and verify that it is nothing but an ordinary paper-and-ink book–they just can’t read anything in it. What exactly would be the basis for not allowing me to carry it across the border?
Because you hate America and it could be terrorist plans. Why were you abroad if not to cavort with Al Queda? I’m sure there is something under the Patriot Act they could use or make up for anybody. Hell, under the Patriot Act I was investigated by the FBI because I enrolled in a college in England.
They don’t need to give you a basis. They can just decide to keep the document.
8.1(2) “At any point during a border search, documents and electronic media, or copies
thereof, may be detained for further review, either on-site at the place of detention
or at an off-site location, including a location associated with a demand for
assistance from an outside agency or entity (see Section 8.4).”
How does that square with the Fourth Amendment? (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.) Electronic data is clearly “papers and effects,” and a generic probable cause couldn’t describe the things to be seized, so this must have been deemed a “reasonable search and seizure.” What am I missing?
I’m not trying to start a debate, just curious as to how this has been reconciled. My laptop is my livelihood, and I cross the border all the time, so this is a little alarming.
There are probably people here who know the details of this much better than I do, but I can give you a starting point. Essentially, border searches of property are exempt from the Fourth Amendment. No probable cause is required for the searches. Basically, the government only has to say that their interest in knowing what’s on your computer is greater than your interest in keeping your computer information private. And they only have to say that if they were ever in court defending their actions, which is very unlikely. The Wikipedia entry on the most relevant US court case, US v. Arnold (United States v. Arnold - Wikipedia), gives a nice overview, which you might find helpful.
Although your chances of actually having your laptop detained are small, it would be wise to make sure that there are no sensitive files on your computer, nothing that could be misconstrued as troublesome (for example, anything that could be perceived as child porn) and that your information is backed up.
Thanks! Very useful. The only possible concern I’d have is a large number of documents in languages they don’t recognize.
Don’t lock up the child porn. Then there would be a nice intrrnational law case on which country gets to castrate you.
I don’t want to make you paranoid, but yes, that is something to consider. I would imagine having a lot of documents in Arabic crossing from Canada is going to increase your changes of having your laptop seized more than having a lot of documents in French would. Totally my guess , though.
Pretty sure it would be extremely clear which country gets to deal with you if you are a US citizen crossing into the US (which is how I understood the situation). However, just to clarify, for the record, I’m not advocating hiding child porn in any way; rather, just that you want to be extra careful about how anything you have on your computer that can be searched on the whim of a border agent could be perceived.
And remember, the supreme court has defined the border as any part of the US within 200 miles of any international border including the ocean. And one doesn’t have to be crossing the border to be subject to search. I don’t know whether the Gov’t has to demonstrate a desire to enforce border crossing laws or just simple curiousity to do this. So there is nothing to prevent a customs agent from seizing your laptop anywhere within 200 miles of the US coast. Which includes a lot of people…
Are you saying that a customs agent can simply claim you were crossing a border and seize anything from you within 200 miles of a border? Without any evidence that you have actually crossed a border? I would need to see a cite for that.
OTOH, anywhere there is an airport receiving international flights, there are customs agents waiting. This includes places like Kansas City, which I’m pretty sure isn’t within 200 miles of the geographical border.
So what exactly are you claiming?
Please clarify what you mean by this. What Supreme Court case are you citing and is it specifically relevant to 4th Amendment searches?
So you could be walking down the street in New York City and they could do a border-guard search on you?
It is my understanding a US citizen cannot be denied entry into their own country.
Theoretically they could be detained… possibly at Guantanamo…