Ride the Lightning

WHAT CAN CUSTOMS AGENTS DO WITH YOUR LAPTOP? ALMOST ANYTHING THEY WANT TO

August 21, 2008

Probably one of the hottest topics on the legal tech lecture circuit today is what can happen to your laptop when you pass through Customs. We’ve heard of many laptops being examined (most often for child pornography) and some that have actually been detained by Customs agents so that they could examine the laptop’s data more extensively. Scary for those of us who are lawyers, and indeed for anyone traveling with confidential business or personal data.

So what’s the state of the law? We’ve had two interesting recent decisions on this issue. One is U.S. v. Arnold (9th Circuit) decided April 21, 2008. In that case, the defendant was ordered by Customs officers to boot up his laptop. Once booted, the agents clicked on folders entitled “Kodak Pictures” and “Kodak Memories,” finding a photo of nude women. Upon further examination, the officers found images that they believed to be child porn. Two weeks later, federal agents obtained a warrant. Arnold was charged under 18 U.S.C. Sec. 2256(8)(A). He argued that reasonable suspicion was needed to examine the contents of his laptop, and the trial court agreed. The appellate court, however, reversed and held that reasonable suspicion is not needed for Customs officials to search a laptop or other personal electronic storage devices (yikes! Think about those smart phones and iPods!).

The other case is In Re Boucher (U.S. District Court, Vermont) decided on November 29, 2007. Boucher had crossed the Canadian border into Vermont, where a Customs officer inspected his laptop, finding evidence of child porn. Boucher explained that he downloaded a lot of porn from newsgroups but deleted anything once he saw that it was child porn (oh sure). When asked by the officer to show him where these downloaded files were, Boucher navigated to “Drive Z,” entering a password which the officer did not see. The officer found several CP images and videos of child porn and arrested Boucher. The laptop was then seized – and shut down. Turns out (could you see this coming?) that Drive Z was encrypted and that the computer forensics experts couldn’t get past the encryption. The grand jury subpoenaed Boucher to provide the password or the files themselves, and he refused, citing his Fifth Amendment right against self-incrimination. The court accepted that argument since the act of providing the password or the files would effectively be testimonial in nature.

It will not have escaped your attention that both of these cases are about child pornography and this is a problem. While child pornography is despicable, and everyone is hot to stop folks from trafficking in CP, we must be mindful of Constitutional rights – which exist for a reason. In all honesty, I’ve never seen a case where Customs agents were after anything except child porn, at least to date. But the way we treat child porn will govern the way we treat other kinds of data as well. This is simply another instance of electronic data changing the way we live, with legal implications that no one had heretofore thought through. Frankly, I worry about John and I traveling with sensitive client data, something which we no longer do when we leave the country.

What’s a travel-savvy professional to do? There is always DriveCrypt (http://www.securstar.com/home.php) which encrypts your drive and allows you to have an additional set of entirely phony data on the laptop. If the nice (or not so nice) Customs officer wants to have a look-see, you simply put in the secondary password and the bogus data comes up. Hopefully, they simply let you go on your way, none the wiser.

However, in these days when laptops are sometimes detained for weeks, we are recommending that our clients travel with a clean laptop (nothing you wouldn’t mind the officers seeing). Once you get to your destination, connect via a secure connection and download anything you need to work on. Send it back securely and then use a targeted wiping program to securely delete the data. Better safe than sorry.

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