(1) to be perfectly safe, keep all your data on an online server (uploaded using 128 bit encryption); don't bring a computer (laptop) period; when you get to your destination, borrow, rent etc., download your info and use it--one should not have to be at the mercy of "big brother", but it is better than having your equipment seized (or private data read.)
(2) if you still want to bring a laptop: partition drive into say c:, d:, e:, separately password protect each --make e: a hidden partiotion, this is the one you keep your sensative data. when they ask for your password, they will first find c:, and if they are still suspicious, you give them password for d:--they should be now satisfied that they "got you":). a cbp agent (unless he really understands computers) would not realize that some bytes are unaccounted for (from just the sizes of c: + d:).

I'm surprised that Customs hasn't been given flash drives with the necessary software on it to sniff out such tactics...

That is a key legal point -- the government is asserting that a laptop is "no different" than a suitcase (cue mental image of Chertoff opening his suitcase and trying to send an email from it) -- a "container" that they have the right to search under the border search exception.

Yet if the same data was put on a disk and mailed, they would need a warrant to look at it. If the same data was attached to an email and sent, they would need a warrant to look at it.

Government agencies should not be spending time and resources on finding new ways to put cracks in the 4th Amendment armour that protects citizens from out of control law enforcement agencies. They should be strengthening that protection and looking to close gaps that have been discovered.

since the ruling came from the 9th circuit, shouldn't it apply only to people clearing customs in that district? "technically", until the supreme court rules on the issue, it should not apply at jfk i.e.

That depends. Do you have any contrary authority from a Court of Appeals? For example, if the Court of Appeals in Boston (First Circuit) comes to a contrary conclusion, you could debate the geographical distinction. But, absent an explicit contrary decision, the geographical distinction is probably not going to matter (i.e. - Customs will say "Our long-standing policy has been affirmed by a Court. We were doing it before it was affirmed, and now we feel better.")

I'm not sure it's possible to have software which truly gives any meaningful info if "such tactics" are properly implemented.

A number of recent posts were deleted in this thread as being off-topic, argumentative and inflammatory. Let's keep the discussion here on laptops and Customs and not on each other.

As usual, thanks for your cooperation.

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Cholula
Travel Safety/Security Forum Moderator

Not necessarily. While the ruling only directly impacts the Ninth Circuit, Customs generally will not set out policies that are inconsistent across the country. And here, since the ruling is in their favor, they have the advantage. A passenger clearing customs at IAD could contest a warrantless search of their laptop, but given that the arguably most liberal circuit in the country has sanctioned the practice, I doubt that the conservative Fourth Circuit would enjoin the practice.

I am living proof of this - my laptop that I type on right now was searched by Canada Customs when I returned home from Las Vegas into Vancouver last year.

Sanosuke!

This Ninth Circuit decision would not apply as binding precedent to anyone clearing customs at JFK or anywhere else outside of the Ninth Circuit. A case stemming from Customs at JFK would be heard (if appealed) by the Second Circuit, which would be free to follow, distinguish or disregard the Ninth Circuit decision.

More often than not, circuit courts follow applicable precedents of their sister circuits. When the circuit courts disagree, it is up to the Supreme Court to resolve the disagreement.

I have no expertise in this area and I could be wrong about this, but my understanding is that if the disk is coming in from another country, Customs does not need a warrant to search it. I have no idea about the email coming in from abroad.

What about a phone call? A person can act as a low data-rate modem by speaking out zeros and ones or with Morse-code. It is possible to send email or, if the person has a lot of time, child porn, in this manner.

If that's protected from suspicionless search, then what about other forms of encoding data (i.e. the Internet: email)? If email is not protected, why is voice (voice transmission is all digital now)?

AFAIK International phone calls & email have more protection than international sneakernet (hence the big hubbub about FISA, etc.) The gov't admits that data coming into the US is subject to 4th Amendment protection, but only via certain transmission channels. :confused:

Is there any legal reasoning behind this at all; is the nonsensical situation just a legal accident, or does the gov't secretly realize that admitting that phone calls are protected is tantamount to admitting that hard drives are protected?

Exactly my point -- if those files came into the country by any other means -- through the post or by email or otherwise over the internet, then it's been clearly established that a warrant would be required (yes, even "reasonable suspicion" or "probable cause" couldn't get customs or the FBI a look inside) yet skeltor continues to insist that he can search laptops just because he feels like it.

So the message, other than that I'm naive, is that the courts have created a completely illogical exception to the 4th Amendment.

If that's not the case, then God help us. The logical end result of the current border search policy is that no communications, domestic or international, will be safe from suspicionless and warrantless government spying and confiscation.

Many domestic communications end up, or will happen to end up, crossing an international border. For example, say your email goes via a server in Canada, your phone call goes via a fiber that crosses Canadian waters, your call gets routed via a satellite, or your WiFi signal can be detected in Mexico or international waters).

This non-lawyer sees precedent here. Plenty of intra-US-state commerce is regulated under Congress's authority to regulate interstate commerce because of the clearly "interstate" nature of the business. The logical extension of that idea is that the government's authority to regulate international data transfer without respecting Constitutional protections gives the government to regulate domestic data transfer without respecting Constitutional protections. Data transfer, even if it's only domestic, is clearly international in the same way that much intrastate commerce (air travel, telecom, etc.) is interstate. :(

Could you explain what all went on during this? How did they conduct this search? Was it done in front of you? What was requested? Did they use any special software? Did they copy anything?

For now, I've been travelling with a totally clean Asus EEE for international trips and Remote Desktop back to the main office when on the road.

I do have to laugh at the absurdity of various government actions with regards to this. It's not like the internet doesn't exist. We know it exists, we know enemies of the State use it as well as the State use it. 99% chance if someone has any brains, they'd quietly send whatever they need across the internet and be done with it. No need to risk getting caught by CBP.