The Department of Homeland Security on Thursday released new directives covering border searches of electronic devices and media, but the government's rules leave open the question of whether individuals can be compelled to provide passwords and encryption keys.
DHS Secretary Janet Napolitano in a statement characterized the rules as an attempt to balance the investigatory requirements for fighting crime and terrorism with privacy and civil liberties.
In February, the U.S. Supreme Court refused to reconsider an appeals court ruling that laptops are like suitcases and can be searched at borders without reasonable suspicion.
Laptop searches remain an unusual event for travelers entering the country. More than 221 million travelers passed through U.S. ports of entry between Oct. 1, 2008, and Aug. 11, 2009, according to U.S. Customs and Border Protection (CBP). These entries resulted in about 1,000 laptop searches, only 46 of which were in-depth.
Nevertheless, the DHS policy of treating laptops and electronic devices as the equivalent of suitcases and backpacks in terms of border searches has alarmed business travel and privacy groups.
The Association of Corporate Travel Executives (ACTE) and the Electronic Frontier Foundation (EFF) claim that the government's right to seize, copy, and store information on electronic devices undermines the ability of businesses to protect confidential information and establishes an end-run around Fourth Amendment protection. They argue that the contents of an electronic device are particularly personal and that such devices shouldn't be governed by the rules for suitcases.
Marcia Hofmann, staff attorney at the EFF, says the new directives appear to be largely the same as past policy, although they do provide welcome specificity about border search procedures. "For example, the July 2008 border search policy issued by CBP said that agents could detain devices or copies for a 'reasonable period of time to perform a thorough border search,' but it wasn't clear what a 'reasonable period of time' was," she explained in an e-mail. "The new directives specify actual time lines, which is a positive change."
Hofmann, however, said there is still room for improvement. The rules, she said, "still allow agents to search devices and information with no suspicion whatsoever that a traveler has committed any wrongdoing. I also think the question of how agents handle sensitive information remains very murky."
About two weeks ago, Nate Cardozo, open government legal fellow at the EFF, asked CPB through its online comment system, "If a CBP agent requests my password or encryption key and I refuse to provide it, will I be denied entry, will my laptop be seized, neither or both?"
The response, from a CPB employee identified as Frederick, was: "There is no concrete answer that can be given to your question since it is hypothetical. The outcomes you listed are possible, although a US citizen would not normally be denied entry. The actions that result from a denial to cooperate with a legal search are dependent on the applicable laws as well the discretion of the officers conducting the inspection."
In other words, a CBP officer could decide to detain a traveler who refused to provide the government with access to his or her device and data.
In a document titled "Foreign Travel Threat Assessment: Electronic Communications Vulnerabilities," published last June by the DHS's critical infrastructure threat analysis division, DHS urged business leaders and U.S. officials to "leave [electronic devices] at home" when traveling.
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