Crossing the U.S. Border with Electronic Devices

(Source; click to enlarge)

by Gaius Publius

It used to be that when most people crossed the U.S. border, their electronic devices — computers, smartphones, tablets — were not routinely searched. This is no longer the case. As Murtaza Hussain notes at The Intercept, searches are up sharply, from 5,000 in 2015 ... to 5,000 in just last February alone.

It's not just ICE agents whose jobs are "fun" again, it's the men and women at the U.S. Border Protection service too.

Lawsuit Seeks Transparency as Searches of Cellphones and Laptops Skyrocket at Borders

A lawsuit filed today by the Knight First Amendment Institute, a public interest legal organization based at Columbia University, seeks to shed light on invasive searches of laptops and cellphones by Customs and Border Protection officers at U.S. border crossings.

Documents filed in the case note that these searches have risen precipitously over the past two years, from a total of 5,000 searches in 2015 to 25,000 in 2016, and rising to 5,000 in the month of February 2017 alone. Among other questions, the lawsuit seeks to compel the federal government to provide more information about these searches, including how many of those searched have been U.S. citizens, the number of searches by port of entry, and the number of searches by the country of origin of the travelers.

The obvious problem — that pesky Fourth Amendment aside — is, as the author puts it, "the wealth of personal data often held on such devices." Seizure and search of these devices puts that highly personal treasure trove in the hands of the Trump-led, even-more-muscular government and its agents, to do with as they will. (And don't discount the possibility that Trojan horse software could be implanted. Not that our government would do that, mind you — that would be wrong — but still.)

Of course, the border agents can't order you to surrender your devices and unlock codes — not exactly — though intimidation and coercion is in their repertoire. How long, for example, are you willing to put your life on hold while you defy them and they wait you out ... at the airport, with a flight to catch or a job to get to?

Hussain again:

A number of recent cases in the media have revealed instances of U.S. citizens and others being compelled by CBP agents to unlock their devices for search. In some instances, people have claimed to have been physically coerced into complying, including one American citizen who said that CBP agents grabbed him by the neck in order to take his cellphone out of his possession.

With that in mind, I thought I'd offer a few suggestions, as a partial answer to questions I'm seeing more and more, asked by people who have reason to believe they may be on the "outs" with the brave new world in Washington and its agenda.

How to Safeguard Your Data From Searches at the Border

The first set of suggestions comes from the New York Times. Brian Chen, the author of the piece, gives a nice introduction to the problems encountered by those who cross the U.S. border, closing with the admonition, Do not lie about your passwords. That would not only be wrong, it would be punishable.

That said, here are his suggestions. Note that many of them hinge on not crossing the border with your data to begin with — or not crossing the border with your passwords, even in your head. Chen:

Consider a cheap device

The best way to prevent your information from being searched is to travel with a device that never had any of your data in the first place.

It’s a wise idea to invest in a so-called travel device, a cheap smartphone or computer that you use only abroad ... So leave your fancy equipment — along with your photo album, Facebook, Snapchat and Twitter apps — at home.

Which devices to buy? The Wirecutter, the product recommendations site owned by The New York Times, published a guide on budget Android phones, including the $100 Moto G4 Play that comes unlocked so that it can work with foreign SIM cards. For cheap computers, consider a $550 Acer laptop or a $430 Dell Chromebook.

When it comes to phones, you could even forego a local phone and, as an East London friend suggests, buy a cheap smartphone or even a "dumbphone" at your destination. Then load a pay-as-you-go SIM card into it and use it exclusively. You could even abandon it before leaving if you're feeling really bold. (Remember when travelers didn't feel incomplete if they didn't have a phone in their pocket? That could be you.)

If you want it back, I'm sure a friend would be glad to mail it to you after you leave — or you could simply mail it to yourself before you depart.

Three more small pieces of advice before one major one:

Disable fingerprint readers

...[In] the United States, law enforcement agencies have successfully used warrants to compel people to unlock their cellphones with a fingerprint. But because of your right to remain silent, it would be tough (though not impossible) for the federal government to force you to share your passcode. So disabling your fingerprint sensor when traveling is generally a safer move. ...

Encrypt your devices

Whether you are using a burner device or your own, always make sure to lock down the system with encryption, which scrambles your data so it becomes indecipherable without the right key.

Desktop apps like BitLocker or Apple’s FileVault let you encrypt your hard drive, requiring a passphrase to decrypt your files. To avoid surrendering this passphrase, you could jot it down and hand it to a friend and contact that person for the passphrase after crossing the border. [emphasis added]

Back up to the cloud, then wipe before you cross

...[To have access to your data while abroad] back up your data to a cloud service and then wipe, or erase, all the data from your device before arriving at the border, Mr. Zdziarski said. After passing through customs, you could then restore your information from the online backup.

I want to focus on the comment above about your passphrase for a moment. You can't surrender your passphrase (a more complex form of password) if you don't know it. So, when you encrypt your device, use a complex passphrase that you (1) don't memorize, and (2) give to someone not traveling with you.

If You Don't Know Your Passwords, You Can't Surrender Them

Which leads to the final piece of advice, a major one:

Don’t memorize your passwords

The best way to protect your passwords is to not know them. When resisting a data frisk, it is easier to say you didn’t memorize your password as opposed to refusing to provide it to border agents, Mr. Grossman said.

“If you don’t know them it’s hard to compel you to give them over if you don’t know how,” he said. “Even if somebody put a gun to my head, I don’t know it.”

Password management apps like 1Password and LastPass can automatically create strong, lengthy passwords for all your online accounts and keep them stored in a vault that is accessible with one master password.

However, Mr. Grossman said you are better off traveling without your password management software loaded on your devices so that you won’t be asked to hand over the master password to your vault. You could store a copy of the password vault on a cloud service like Dropbox and get access to your vault of passwords when you reach your travel destination, he said.

An alternative to using a password-managing app is to write your passwords down and leave them with someone you trust. After getting through customs, contact that person and ask him or her to read off your passwords.

What's really needed, of course, is for someone who can put her life on hold — and who has a great lawyer prepared to defend her — to challenge these searches and seizures in court. Some lawyers I spoke to don't think they're legal — though note the strong objections to that opinion here.

Suggestions from the CIA

The other suggestions I want to offer come from the CIA. This isn't related to carrying electronic devices per se, but to how to comport yourself during screenings. WikiLeaks has leaked internal documents from the CIA that advise its own agents how to behave when they cross the border. After all, if you're a spy with a cover story, you don't want it blown by some border cop who pulls you out of line for a random secondary check and spots your nervousness.

Those documents are here:

CIA Assessment on Surviving Secondary Screening (pdf)
CIA Advice for Operatives Infiltrating Schengen [Countries] (pdf)

Happy traveling.

GP
  

THE FOURTH AMENDMENT GONE WILD, PART III

DWT's constitutional expert Jon Dodson has been working on a 25 part series about the Fourth Amendment. You might want to check out Part I and Part II. Jon:
 
At long last, another piece on the Fourth Amendment. Eons ago, I wrote the first two installments, the first one on the difference between searches and Fourth Amendment "searches," and the second on the difference between seizures and Fourth Amendment "seizures." This matters because the Fourth Amendment only covers "searches" and "seizures." The next great bulwark of constitutional protection is the rule that any police action that through some oversight by the Supreme Court, actually falls within the operative definitions, must be supported by a "warrant" and "probable cause," occasionally. Today, "probable cause."
 
It's the second-lowest standard of judicial review in the Western legal system, and it only applies sometimes. Aside from prosecutorial discretion, it's the only thing between a person and typically, a night in jail, several thousand dollars in legal fees, court fees, probation fees, fees of the various other organizations that leech off of the criminally accused, and a criminal charge, which would forever stain your record, whether or not you're convicted. More pertinent to the Fourth Amendment, an officer must have probable cause to believe he will find something in order to conduct a "search," and must have probable cause to believe an item (or person) is relevant to a crime in order to "seize" it, sometimes.
 
When a police officer pulls someone over, she may have a hunch that the car contains contraband, or evidence of a crime. Such a hunch could come from many sources-- the stereotypes and prejudices of the officer, the race, religion, gender, or manner of dress of the person detained, political and other bumper stickers, or even concrete "evidence." The police officer need only point to some objective fact that bolsters his "hunch." Such a fact need not be verifiable later in court (such as the whether it smelled of marijuana). So long as the fact seems plausible in light of the officer's allegations, then an officer will usually have probable cause to search or seize a person or thing.
 
There are many other standards of proof a judge might use to measure the reliability and credibility of the State's allegations. In order to convict the person of a crime, the prosecutor must prove the charges "beyond all reasonable doubt." This is the highest standard. The next highest standard is "clear and convincing evidence," which is used in child custody hearings. Next is "preponderance of the evidence," which basically means "more likely than not." Statistically speaking, evidence surpasses the "preponderance of the evidence" standard, when the evidence establishes that something was 51% likely to have happened.  By implication, some allegations that are less than 51% likely to have happened meet the next lowest standard: probable cause. When the allegations are merely "as likely as not" to have happened, there is probable cause. Even when the allegations are improbable, there is usually probable cause.

Despite the ease with which any officer or false informant could manufacture probable cause, the Supreme Court found that the remains of the standard recited in the Fourth Amendment, were still too inconvenient to law enforcement. Over the last forty years, the court has devised ad hoc exceptions to the constitutional mandate. Hence, we have many Fourth-Amendment-free zones in this country. Some of them are more understandable than others. For example no probable cause is needed to search one's bags in airports, airplanes, many government buildings, large gatherings, and all kinds of commercial establishments, big and small. These exceptions are extremely inconvenient, but perhaps understandable. There's a plethora of different "automobile" exceptions to probable cause. Most people spend substantial time in their cars. We transport everything in our cars, including groceries, personal papers and documents, medications, and pretty much anything that fits. We go many different places and jurisdictions in our cars. But anything in our cars can very easily be searched. 
 
Then there's the so-called "Terry stop." This is a vague exception, whereby an officer can perform a pat-down or other limited search based on the lower "reasonable suspicion" standard. Translation: an officer can detain a person and search their pockets and bags whenever he can pull a story out of his ass that is minimally, arguably plausible. 
 
So, the venerated standard, "probable cause," is a virtual free-for-all. A dishonest officer must only articulate something not patently outrageous to meet the standard. In many situations, such as in cars or airports, the officer doesn't even need this. Moreover, as discussed previously, the standard doesn't even apply to the vast array of invasive police activity not considered a constitutional "search," or "seizure." We could take refuge in the Constitution's mandate of judicial oversight of searches and seizures, via the warrant procedure. But, as you might imagine, the warrant procedure doesn't amount to much, particularly when judges apply such deferential standards. So, despite the Fourth Amendment's historical, quintessentially American underpinnings, the grand, revolutionary ideas encapsulated, and its centuries of use, all we're really left with is perhaps all we ever had: the discretion of the powerful. 


UPDATE: THIS IS WHY WE REFER TO JON AS OUR CONSTITUTIONAL EXPERT

Supremes give the man more power for searches. "The Supreme Court offered unanimous support for police Wednesday by allowing drug evidence gathered after an arrest that violated state law to be used at trial, an important search-and-seizure case turning on the constitutional limits of 'probable cause.'"

When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety," Justice Antonin Scalia wrote.