Digital Frisking for Copyright Infringement at US Border Disclosed

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.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

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 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.

Drew Wilson on Twitter: @icecube85 and Google+.

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