Protecting Electronic Devices and Stored Information from Customs Searches
Sep 25, 2017, 7:40 pm
#166
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Going to the UK? Not giving up device access could be difficult.
https://finance.yahoo.com/news/trave...175748991.html
https://finance.yahoo.com/news/trave...175748991.html
Traveler who refused to give device passwords to police found guilty of obstruction in UK court
A UK court has reaffirmed the power for state agents to use sweeping counterterrorism legislation to require travelers hand over the passwords for their digital devices for their contents to be searched at borders.
Sep 25, 2017, 9:24 pm
#167
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There's a actually a federal statute requiring third parties to "assist" border officers in performing their duties, and some have argued that this requires you to give your password or you could be arrested.
However, the better legal analysis is that the Fifth Amendment right against self-incrimination protects a traveler from having to assist CBP in this manner. I've never heard of CBP arresting anyone for refusing to enter a password.
Of course this is another thing that an officer might bluff a traveler with. "I'll arrest you under this statute unless you give me the password."
More here: https://psmag.com/news/what-customs-...an-and-cant-do
However, the better legal analysis is that the Fifth Amendment right against self-incrimination protects a traveler from having to assist CBP in this manner. I've never heard of CBP arresting anyone for refusing to enter a password.
Of course this is another thing that an officer might bluff a traveler with. "I'll arrest you under this statute unless you give me the password."
More here: https://psmag.com/news/what-customs-...an-and-cant-do
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The Fifth Amendment says that no one shall be made to serve as “a witness against himself” in a criminal case. Lower courts, however, have produced differing decisions on how exactly the Fifth Amendment applies to the disclosure of passwords to electronic devices.
Customs officers have the statutory authority “to demand the assistance of any person in making any arrest, search, or seizure authorized by any law enforced or administered by customs officers, if such assistance may be necessary.” That statute has traditionally been invoked by immigration agents to enlist the help of local, state, and other federal law enforcement agencies, according to Nathan Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project. Whether the statute also compels individuals being interrogated by border officials to divulge their passwords has not been directly addressed by a court, Wessler said.
Even with this legal uncertainty, CBP officials have broad leverage to induce travelers to share password information, especially when someone just wants to catch their flight, get home to family, or be allowed to enter the country. “Failure to provide information to assist CBP may result in the detention and/or seizure of the electronic device,” according to a statement provided by CBP.
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The Fifth Amendment says that no one shall be made to serve as “a witness against himself” in a criminal case. Lower courts, however, have produced differing decisions on how exactly the Fifth Amendment applies to the disclosure of passwords to electronic devices.
Customs officers have the statutory authority “to demand the assistance of any person in making any arrest, search, or seizure authorized by any law enforced or administered by customs officers, if such assistance may be necessary.” That statute has traditionally been invoked by immigration agents to enlist the help of local, state, and other federal law enforcement agencies, according to Nathan Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project. Whether the statute also compels individuals being interrogated by border officials to divulge their passwords has not been directly addressed by a court, Wessler said.
Even with this legal uncertainty, CBP officials have broad leverage to induce travelers to share password information, especially when someone just wants to catch their flight, get home to family, or be allowed to enter the country. “Failure to provide information to assist CBP may result in the detention and/or seizure of the electronic device,” according to a statement provided by CBP.
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Last edited by TWA884; Sep 25, 2017 at 10:19 pm Reason: FT Rule 9, copyright violation
Sep 26, 2017, 2:40 am
#168
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Going to the UK? Not giving up device access could be difficult.
https://finance.yahoo.com/news/trave...175748991.html
https://finance.yahoo.com/news/trave...175748991.html
http://www.flyertalk.com/forum/check...ectronics.html
Oct 1, 2017, 6:29 pm
#169
Join Date: Sep 2010
Location: KSUX
Posts: 906
What I'm wondering is what's to prevent them from confiscating newer phones that use facial recognition and holding them up to your face to unlock them.
Oct 1, 2017, 8:00 pm
#170
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While it's not as fast you can go under Settings -> Touch ID & Passcode and turn on/off the ability to use it to unlock the phone while retaining the stored finger prints. Handy for when you need to keep it disabled for longer periods of time and still be able to use your phone.
What I'm wondering is what's to prevent them from confiscating newer phones that use facial recognition and holding them up to your face to unlock them.
What I'm wondering is what's to prevent them from confiscating newer phones that use facial recognition and holding them up to your face to unlock them.
A: Nothing.
Oct 1, 2017, 10:36 pm
#171
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While it's not as fast you can go under Settings -> Touch ID & Passcode and turn on/off the ability to use it to unlock the phone while retaining the stored finger prints. Handy for when you need to keep it disabled for longer periods of time and still be able to use your phone.
What I'm wondering is what's to prevent them from confiscating newer phones that use facial recognition and holding them up to your face to unlock them.
What I'm wondering is what's to prevent them from confiscating newer phones that use facial recognition and holding them up to your face to unlock them.
Oct 26, 2017, 11:44 am
#172
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4th Circuit to Hear Appeal on warrantless search of electronics
A turkish national was arrested after a border search at IAD for attempted unlicensed export of defense items (firearm (handgun) parts). Subsequent to the search and after the arrest his cellphone was searched without warrant. Evidence from the phone was used to help prove knowing willfulness and conspiracy. The traveler was convicted on 3 charges and is appealing the convictions on the grounds the search of the phone was illegal and that evidence should be suppressed.
The appeal is being heard today by the 4th Circuit.
https://www.usnews.com/news/best-sta...onics-searches
At the same time, all of the state ACLU chapters in the circuit are using this case to get the 4th Circuit to update/clarify the rules regarding border searches of electronic devices.
Here is the ACLU amicus brief:
https://www.aclu.org/legal-document/...ce-search-case
Should be interesting ruling. I think the defendant will lose but even so I hope the Court doesn't punt on clarifying just how much freedom the government has to conduct searches of devices as part of a border search.
The appeal is being heard today by the 4th Circuit.
https://www.usnews.com/news/best-sta...onics-searches
At the same time, all of the state ACLU chapters in the circuit are using this case to get the 4th Circuit to update/clarify the rules regarding border searches of electronic devices.
Here is the ACLU amicus brief:
https://www.aclu.org/legal-document/...ce-search-case
Should be interesting ruling. I think the defendant will lose but even so I hope the Court doesn't punt on clarifying just how much freedom the government has to conduct searches of devices as part of a border search.
Oct 26, 2017, 1:15 pm
#173
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Regretfully, I agree. This guy is obviously a serial export violator. I can't imagine the court would broaden the question beyond admissibility of the cell phone evidence in the export violation prosecution. My guess is that they had enough evidence for a conviction without the cell phone but were going after the slam dunk. As you stated, they could throw out the cell phone evidence within the narrow confines of this case and not address the bigger issue.
Last edited by FliesWay2Much; Jan 7, 2018 at 12:54 pm
Jan 6, 2018, 2:28 pm
#174
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In The New York Times:
Cellphone and Computer Searches at U.S. Border Rise Under Trump
Customs officers stationed at the American border and at airports searched an estimated 30,200 cellphones, computers and other electronic devices of people entering and leaving the United States last year — an almost 60 percent increase from 2016, according to Homeland Security Department data released on Friday.
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Jan 6, 2018, 4:02 pm
#175
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From the horse’s mouth:
https://www.cbp.gov/newsroom/nationa...-directive-and
and here’s the PDF on this:
https://www.cbp.gov/sites/default/fi...onic-media.pdf
https://www.cbp.gov/newsroom/nationa...-directive-and
and here’s the PDF on this:
https://www.cbp.gov/sites/default/fi...onic-media.pdf
Jan 6, 2018, 5:21 pm
#176
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From the horse’s mouth:
https://www.cbp.gov/newsroom/nationa...-directive-and
and here’s the PDF on this:
https://www.cbp.gov/sites/default/fi...onic-media.pdf
https://www.cbp.gov/newsroom/nationa...-directive-and
and here’s the PDF on this:
https://www.cbp.gov/sites/default/fi...onic-media.pdf
It looks to me like CBP has crafted a way to circumvent the Cotterman case's requirement that they have "reasonable suspicion" before seizing an forensically searching a locked device.
The new directive suggests, for the first time I've ever seen in print, that if you refuse to unlock your phone/computer, CBP can simply "exclude" that device from the USA or "refuse to admit it." No reasonable suspicion required.
CBP: "Tell us the password to your laptop/phone."
You: "No"
CBP: "OK, but your laptop/phone can't enter the USA if you don't unlock it for us to search. We're seizing it, and it will be destroyed like other contraband. Have a nice day. You're free to go."
It seems that simple to me. But confusing matters a bit is that the Washington Post quotes a "senior official" of CBP as saying that Americans who refuse to give up passwords will just have the devices seized for "up to five days." https://www.washingtonpost.com/world...=.8c82db5bed91
Jan 7, 2018, 1:25 pm
#178
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This statement got my attention:
The extended border includes the Constitution-Free Zone. This is what's supposed to happen:
They are supposed to apply these tests for anything they do in the Constitution-Free Zone except for asking citizenship questions. But, as seen by their actions of having the drug dogs out there at checkpoints, they simply ignore the law and their own directives.
The extended border includes the Constitution-Free Zone. This is what's supposed to happen:
The border search exception may be extended to allow warrantless searches beyond the border or its functional equivalent. Under the “extended border search”doctrine, government officials may conduct a warrantless search beyond the border or its functional equivalent if (1) the government officials have reasonable certainty or a “high degree of probability” that a border was crossed; (2) they also have reasonable certainty that no change in the object of the search has occurred betweenthe time of the border crossing and the search; and (3) they have “reasonable suspicion” that criminal activity was occurring. This three-part test ensures that a suspect still has a significant nexus with a border crossing so that border officials can reasonably base their search on statutory and constitutional authority and to ensure that the search is reasonable.
Jan 17, 2018, 10:06 pm
#179
Join Date: Feb 2002
Location: NorCal
Posts: 658
Anyone heard any new strategies? They just put out a new policy basically saying they can confiscate if they need to. There are some protections and procedures they're supposed to follow first, but I've got no faith they'll be followed and/or actually delay an agent in confiscating an electronics item.
Even attorneys are still trying to figure out what they should do. If you're technically advanced enough, you run everything through a VPN and the cloud. Nothing is on local hard drives. That's not an option for most people and is still quite hard to do completely on a phone.
Even attorneys are still trying to figure out what they should do. If you're technically advanced enough, you run everything through a VPN and the cloud. Nothing is on local hard drives. That's not an option for most people and is still quite hard to do completely on a phone.
Jan 18, 2018, 2:56 am
#180
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This thread should probably turn into a sticky wiki, lol. I guess you'll have to do your own "threat assessment" to see what you really don't want them to see and what you don't want them to see but push come to shove, fine whatever. For me, its really just the email boxes and pictures thats the highly sensitive things that i don't want them to access... I do a fair share of trash talking in my sms/chat apps but I don't deal drugs so its ok.
Work / Personal Emails... Easy... Remove account from your phone and restore later.
Social Media.... Uninstall and install later
Pics Linked to Dropbox / Icloud... Remove from phone and restore later.
SMS / Chat Apps... Some apps are easy to remove / restore and some are not.
Maybe there are those apps out there that can make certain app data gated/invisible just like hidden folders don't appear if you don't type the proper password but I haven't looked into it.
Work / Personal Emails... Easy... Remove account from your phone and restore later.
Social Media.... Uninstall and install later
Pics Linked to Dropbox / Icloud... Remove from phone and restore later.
SMS / Chat Apps... Some apps are easy to remove / restore and some are not.
Maybe there are those apps out there that can make certain app data gated/invisible just like hidden folders don't appear if you don't type the proper password but I haven't looked into it.