Why do US Customs search laptops?
 

As I reported in a recent trip report, I received the "random" (aka I was silly enough to be the first person out of baggage claim and they had nothing better to do) search by Customs at SFO a few days ago.

One officer powered up my laptop, turned it towards himself and proceeded to browse through the directories. I leaned forward so that I could see what he was doing. He said "you could lean back a bit", to which I replied "yes, I could, but I want to see what you're doing to my machine". This was not a well-received response. After some minutes of browsing, he'd finished. He never looked at anything in the Linux partitions, of course. I was wishing I'd made Linux the default boot OS, as I'm sure that would have confused the hell out of him. I really wanted to tell him where to find both the MP3 and the video of American Idiot (yes, they are on my laptop) but decided against it.

Once he was finished, I asked what he was looking for, and he replied there were many possibilities, including "illegal company records, pornography". Now, given the search he was doing, there's no way he'd have known any company records, or even been able to tell if I had any. As for pornography, I wasn't aware of that being illegal in the USA. It seems to be available everywhere, including on public access TV in Seattle and on most computers.

I strongly suspect that those were totally bull.... answers, but I don't know. Two things I am left wondering:

1) Does he have any right to search though my belongings (including searching my laptop) without my being able to see what he's doing? He could have caused serious damage or data loss and I'd rather not allow that. (I was carrying a complete CD-based backup of the whole machine in one of my other bags though.)

2) What are they really looking for? Are they really looking for anything, or just being terrorists? As far as I could tell, he was just browsing at random to try to annoy me and waste my time.

He probably was at least looking for child pornography, of which mere possession is illegal in the U.S. (as well as many, many other places). His ability to find it is another matter, of course! I imagine that people who indulge in child porn protect it reasonably well. They know it's illegal, obviously.

Bruce

The importation of immoral articles is illegal. Where pornography is concerned, this has been defined by the courts as bestiality and child porn. CBP seizes child porn quite frequently, and that is almost certainly what he was looking for. While some are good at hiding it, many don't bother and bring it across on hard drives, CD's, etc.

The "business records" part, however, does not make any sense.

And yes, he had every right to search your stuff without you watching.

Edit: bestiality is in a weird "you can possess it, depending on state law, but importation is still illegal under federal law" category, along with switchblades.

Back in my private sector days, I always carried blank company nondisclosure agreements for proprietary information and was prepared to make any overzealous TSA officer or other government official sign one if I believed they were reading company materials for which they did not have access.

Ha. Speaking for me, I'd tell you to shove your form up your behind. The law allows him to search it and does not require compliance with your corporate policy.

One can certainly imagine a set of circumstances under which a government official came to possess valuable corporate information. For instance, a Customs official searching an investment banker might learn of a merger in the works. Acting on that insider information would already be illegal. Violating a nondisclosure agreement wouldn't add too much to the guy's troubles if he were caught!

I wonder if anything like that has ever happened? The answer is probably yes, but I just never heard of such a case.

Bruce

Very true. There are parts of the Privacy Act and/or Trade Secrets Act which also probably apply.

As an attorney, I have some concerns about TSA searching documents and possibly waiving attorney-client privileged status of the documents. Any thoughts?

FUnny -- That's exactly what I'd expect you to say. I wouldn't expect you to care about company policy, but I would expect you to care -- and demand you comply with -- the law of the land: Intellectual property laws, trade secret laws, insider trading laws just for starters.

Hunh? Not in this country.

Child porn has a special definition. "Pornography," generally, has no legal meaning whatsoever. "Obscenity" can be regulated (but is not illegal, per se).

What is "CBP"? Are you talking about a country other than the U.S.?

There is a federal law that proscribes child pornography. I'm not aware of any federal law that addresses any other category other than "obscenity."

Yup. I have exactly the same concerns. I wouldn't allow it and, if necessary, would go to the mat to prevent it.

CBP is Customs and Border Patrol part of DHS.

If that is true, why is it the case? Someone inept (or malicious) could do massive damage to data without ones knowledge. They could do so even if you were watching, but knowing what needs to be fixed/recovered from backup would reduce the hassle factor enormously.

The thing that struck me as odd about it was that all of the physical searching was done right in front of me, with every opportunity for me to see exactly what was being searched and put everything back in its place afterwards. Maybe they aren't required to do that, but they did it that way. Why then conduct the laptop data search in such a different manner?

I believe the Patriot Act relieves you of having to worry about waiving attorney-client privelege, right? ;)

Anything crossing the border can be inspected. That's it. There is one exception, and that is foreign diplomatic pouches.

All of the laws you cite merely prohibit the use of that information for unauthorized purposes.