US Border Laptop Search Policies Are Scary

The Department of Homeland Security has revealed its laptop search policy. According to the Washington Post:

Federal agents may take a traveler’s laptop or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

I totally saw this coming once the Ninth Circuit ruled border searches of luggage legal – and the Canadian Border is following the DHS’ lead. It was only a matter of time, as I predicted, before they argue that they need the capability to copy or retain data.

This should scare the bejeezus out of Canadians and Americans alike. The border services are notoriously incompetent, and it is inevitable that laptops and data will be lost. As a result, sensitive corporate or customer data will be compromised, identities will be stolen, competitive advantage will be lost, and a host of other consequences will be incurred.

What I find mind-boggling is that Senator Feinstein “intends to introduce legislation soon that would require reasonable suspicion for border searches”. In other words, to re-affirm that the fourth amendment of the US Constitution does apply at the borders. Talk about cat and mouse.

There’s one additional implication for Canadian companies now that this policy has been clarified. Under PIPEDA, companies must safeguard Canadians’ personal data. This has lead to many services, such as those storing Canadians’ health data, to be moved off of US servers due to the wide-sweeping powers of investigation granted under the US Patriot Act. The implication of this new laptop policy is clear: companies operating in Canada must not carry Canadian customer or employee data on laptops to the US.

Canadian Government Wants to Search Your Laptop

This appeared in today’s Province: New documents have been leaked showing the Canadian federal government is secretly negotiating an agreement to turn border guards and other public security personnel into copyright police. They would be charged with checking laptops, iPods and even cellphones for content that “infringes” on copyright laws, such as ripped-off CDs and movies. The guards would determine what infringes copyright.

This is being done under the Anti-Counterfeiting Trade Agreement – interestingly, federal trade agreements do not require parliamentary approval.

Seriously – are you kidding me? Just how, exactly, is this going to work?

“Sir, do you have your iTunes receipt for this copy of “In Da Club”? No? Then I suspect it’s illegal. Thanks for the free laptop!”

When border guards are incapable of recognizing that a MacBook Air is a real computer (the TSA was stumped by this for a while until they issued new guidance), how can we expect them to correctly judge what is or isn’t “infringing”?

Now that I think about it, why stop here? Why not also have them check everyone for “stolen” articles?

“Sir, do you have your receipt for the pair of Gap jeans you’re wearing? No? I think you stole them. Thanks for the free pants! Now, about that underwear…”

This smacks of bureaucracy that doesn’t actually solve a real problem – but it’s nothing new. A few years ago, the Canadian Copyright Board added a tax to blank media to remunerate artists for lost revenue due to “private copying”. As of 2007, the tax had generated over $100M using this tax – portions of this levy applied to iPod-type devices were struck down, echoing a similar finding in 2004.

We need to see a little public outrage over this.

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