Wednesday, November 26, 2008

Laptops and Borders . . . Again

I’ve done a couple of posts on the rules that govern Customs searches of laptops travelers are carrying into or out of the United States. In those posts, I explained that the rules evolved to deal with luggage and other “containers.”

As I also explained, the traditional rule – in the U.S. and elsewhere – is that Customs agents can search us and whatever we carry as we enter into or leave the country.

The premise is that the sovereign has the right to know what is coming into and out of the country. The default target of the border search rule is contraband: child pornography, drugs and other items the possession of which is illegal in and of itself. But it can also encompass other items – such as terrorist materials, weapons, etc. Whatever a traveler is carrying that is illegal to possess can be seized in a border search.

I did a presentation last week at which we talked about a related issue I did a post on: your ability to take the 5th Amendment privilege against self-incrimination and refuse to give up encryption key so border agents can access the contents of your encrypted laptop computer. As I explained there, a Vermont federal court judge held that the act of producing the encryption key constitutes incriminating “testimony” within the compass of the 5th Amendment privilege. If that decision is upheld on appeal (and I’m assuming it is being appealed), then it means you can effectively put the contents of your hard drive beyond the reach of Customs agents (unless and until they’re given encryption-cracking software or can send laptops off somewhere to have the encryption cracked, but we’ll get back to that).

At the presentation last week, someone who seems knowledgeable said Customs agents are seizing encrypted laptops and not giving them back. According to this gentleman, the legal basis for their doing this is a rule that lets Customs agents seize locked luggage you refuse to open. I found that possibility interesting on several levels.

For one thing, I wasn’t sure Customs agents can, and have, seized luggage under this theory. I assumed they simply got the bag or luggage or other container open, somehow (which nearly happened to me in Brussels a few years ago when the zipper of a nearly new bag jammed the night before I left . . . but a very clever Customs agent managed to get it to work where I had been unable to).

I checked the federal regulations governing what Customs agents are authorized to do, and found two pertinent provisions. Section 148.21 of title 19 of the Code of Federal Regulations provides as follows:
A Customs officer has the right to open and examine all baggage, compartments and vehicles brought into the United States . . . . To the extent practical, the owner or his agent shall be asked to open the baggage, compartment or vehicle first. If the owner or his agent is unavailable or refuses to open the baggage, compartment, or vehicle, it shall be opened by the Customs officer.
A similar provision appears in §1462 of Title 19 of the Code of Federal Regulations:
If such owner, agent, or other person shall fail to comply with his demand, the officer shall retain such trunk, traveling bag, sack, valise, or other container or closed vehicle, and open the same, and, as soon thereafter as may be practicable, examine the contents, and if any article subject to duty or any article the importation of which is prohibited is found therein, the whole contents and the container or vehicle shall be subject to forfeiture.
So the regulations explicitly authorize a Customs officer to open luggage or another container if the owner refuses to do so. Customs officers can simply break into the bag or container, which means they will be able to determine what’s inside. Having done so, they can either give the mutilated bag back to its owner (who may or may not be going on his or her way, depending on what they find inside) or seize the bag and its contents for forfeiture.

Other regulations provide for the “summary forfeiture” of illegal drugs; that simply means they’ll be taken and deemed forfeitable property. See 19 Code of Federal Regulations § 162.45a. In other instances, the government has to serve notice and follow certain procedures to forfeit the property; this option applies when the property is not contraband (illegal in itself) but is subject to forfeiture for some other reason. 19 Code of Federal Regulations § 162.49.

Okay, let’s get back to laptops. If someone is crossing the border with an unencrypted laptop, a Customs officer can simply boot it up and look through the files himself. It’s analogous to an unlocked suitcase.

If someone is crossing the border with a laptop the hard drive of which is encrypted, then things become more interesting. If the owner of the laptop refuses to either use the key to give the Customs agent access to its contents or give the key to the agent so he can access it himself, that refusal should trigger the application of the provisions quoted above.

In other words, it would authorize the Customs agent to “open the container” himself . . . except he can’t, as things stand now. If the Vermont federal judge’s decision stands, then the owner of the laptop can cite the 5th Amendment privilege against self-incrimination as his or her basis for refusing to give up the encryption key as long as he or she can show that doing so would not only be “testimony,” it would be “incriminating” testimony. (To be able to take the 5th, you also have to be “compelled” to give testimony that incriminates you, but we’ll assume that can be satisfied here; in the Vermont case, the laptop owner was subpoenaed by a federal grand jury, so compulsion was not a problem.)

If we assume the owner of the laptop can, in fact, take the 5th and refuse to give up the encryption, then we seem to be at an impasse not contemplated by the drafters of the federal regulations governing what Customs agents can do at the border. They can’t search the encrypted hard drive, and if they can’t search it, they can’t seize the laptop for forfeiture because they won’t know what, if any, illegal items it contains.

According to the gentleman who raised this issue at my presentation, Customs agents confronted with this impasse are simply seizing encrypted laptops . . . which seem to disappear indefinitely. I have heard some rumors about encrypted laptops being seized, but I have no personal knowledge of that nor do I have any authoritative sources to cite on that. But for the sake of analysis, let’s assume this is, in fact, happening.

If it is happening, is it legal? I don’t see how it can be. If the laptops are seized to be held until Customs agents have the ability to crack their encryption and access their contents, it seems to me that is an illegal forfeiture of the property. That is, it seems to me the government is in effect depriving you of your property for good; forfeiture, of course, is a formal or informal process by which the government takes property away from the owner . . . permanently. Here, the government’s seizure of an encrypted laptop is not technically that kind of forfeiture because it is not inevitably a permanent seizure of the property; the premise is that the property is being seized until the government can open it.

The provisions I quoted above implicitly authorize that kind of a seizure, although at a much lower level. That is, a Customs officer could seize, say, a really secure metal (titanium) briefcase intending to open it later, when he gets the necessary tools and/or assistance. That kind of seizure, though, differs in a significant respect from the kind of seizure we’re hypothesizing and analyzing here.

In this seizure of an encrypted laptop, there is no certainty that the laptop will be returned to its owner because the owner has no way of knowing when, or if, Customs agents will be able to crack its encryption and access its contents. In the luggage seizure scenario, the person knows they will at some point get their bag back, along with any non-contraband and/or otherwise non-illegal items it contained. In the encrypted laptop scenario, the owner may never get the laptop back, or may get it back at such a distant point in time that it has ceased to be of any use. (We also have the related issue of the seizure of the laptop’s depriving its owner of the possession and use of the data it contains.)

As I said, I don’t know if any of this is really happening, but if it is, it seems to me it could be challenged as constituting an illegal forfeiture.

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