Vol. XXI, No. 2

September, 2008

News reports about U.S. customs' seizures of laptops and other electronic devices have recently brought this concern to the fore. Customs agents have been seizing such materials for some time, but the current discussion in the media is more intense, though not prompted by any specific event. Instead, there seems to be a slow, spreading sense of alarm as the number of seizures becomes more widely known. Businesses are concerned about proprietary data; computer experts are concerned about the impact on computer usage; civil libertarians are concerned about privacy; some are worried about computers that have been seized and not returned, and scholars who work abroad must be concerned about future access to the data they bring with them into the country. If you are returning from the field or otherwise entering the U.S. with important data, having your important data lost because the computer has been taken is an unacceptable risk. At the least, data must be protected by having it stored elsewhere, not only with you as you go through customs.

In sum, the issue is simple. U.S. Customs can search your person and your luggage at the border for any reason at all -- or for no reason, just on a whim. Neither you, nor I, nor anyone else would contest that. (In fact, it was such a search that found the explosives intended for the Los Angeles airport as part of a terrorist plot. They were in the trunk of a car.) Customs now asserts its right to seize, inspect, and retain if necessary any electronic device you may want to bring into the country, again without any reason to suspect that you or the device represent any problem. This is a completely new and different matter, making a great many private and/or proprietary records no longer safe and private but open to search by the government for any reason, apparently including idle curiosity, and opening up the possibility of having those records kept from their owner for an unspecified length of time. While this may seem an unreasonable extension of the kinds of searches that are obviously warranted, the only cases that have gone to court have been decided in favor of the government's power to seize the devices.¹

The author of one of the more complete web pages that has treated this issue believes that the issue of seizing the equipment has been settled and would not be taken up by the Supreme Court because two lower courts have agreed that Customs has the right to take electronic devices. He does suggest that the Supreme Court might have to hear a case involving a user who refused to divulge his password or otherwise refused to assist in decrypting data on a seized device. He concludes that, "In the meantime, travelers should be aware that anything on their mobile devices can be searched by government agents, who may also seize the devices and keep them for weeks or months. When in doubt, think about whether online storage or encryption might be tools you should use to prevent the feds from rummaging through your journal, your company's confidential business plans or naked pictures of you and your-of-age partner in adult fun." (April 22, 2008, "Border Agents Can Search Laptops Without Cause, Appeals Court Rules," By Ryan Singel, on the Wired site: http://blog.wired.com/27bstroke6/2008/04/border-agents-c.html last accessed 08/08/08.)

Indeed, the question of what password or other information can be demanded is an interesting one in the sense that it involves Fifth Amendment rights that surely conflict with any rights of access to such materials that the government may assert. However, at a practical level the potential right to resist giving up a password conflicts irrevocably with the need to have the device for use. That is, if you refuse to provide the password(s) necessary to gain access to your data, the odds are that your computer will be kept until the matter is resolved in court, which could easily be many years in the future, or until the government has managed to gain access without the password.

Archaeologists who enter the country must take seriously the possibility of a government seizure of a laptop or other electronic device. Whether concerned about privacy or not, those entering the U.S. must be concerned about data files and equipment that might be kept indefinitely. What are the available protections? Data encryption to keep data private seems an unpalatable choice since the result is likely to be having to give up the computer -- and the data files -- for an unknown period of time. In addition, for those concerned about privacy, whatever one does with a laptop, any cell phone represents an equally severe problem if it contains information that the owner wishes to keep private.

A second alternative would be to store all files on a removable device such as a flash drive, an external hard disk, or a CD. That, however, is probably not significantly better because the any of those items, if brought in with you, may also be taken. Perhaps one of them could be mailed from abroad, but incoming mail can also be searched, in which case it could also be retained by the government.

A third alternative -- in reality the only choice -- is to store data on a network server, leaving on the computer (or cell phone) no data files if privacy is a concern and leaving the files on the computer or cell phone if access to them is not a concern. In either case, it is not possible to keep Customs from taking the electronic device, but it is possible to be sure the files are available whether the computer and its hard drive are or not, and this seems to be the only sure way to be sure the files are available to you after entering the country.

If privacy is a concern, however, there remains the problem of files that have been erased from your computer and stored on a networked server. Assuming that the files were originally created and/or modified while you were working on the computer, they probably lived on the internal hard drive, at least for a time. Erasing such a file after transfer does not actually change the file at all. It just removes the information from the drive's index. Therefore, it can be quite easy to resurrect a file that has been deleted, especially if the drive has not had anything new written over the area used by the erased file. The data files that you may choose to protect, then, may not be very well protected if they have been on the computer while you were working on them. Such files can be retrieved by good software, even if they have been erased and partially over-written by new files.

Apple's OS X has something called "Secure Empty Trash" that overwrites files as it deletes them. A better system is provided by Apple's Disk Utility, supplied as part of the operating system. That utility can erase the free space on a hard disk in three different ways. The first is quick and easy but not terribly secure, writing zeros over the entire space used by erased files (basically the same as "Secure Empty Trash"), a method that may permit sophisticated software to resuscitate the data. The second method writes over the old files 7 times, and the third over-writes them 35 times. Both the 7-pass erase and the 35-pass erase write random characters to the disk on multiple passes and specific strings or the same character repeatedly on the other passes. The 35-pass system is considered safe even for the government's own computers. [Note: I am not aware of a similar utility supplied as a part of Windows, but there are both free and modestly-priced software tools to accomplish the same thing with Windows. I have used and can comment on none of them.] To be safe, then, anyone wanting to come into the U.S. with a computer without providing access to the information once stored on it, would need to use one of the systems that over-writes files to remove them securely. Note, however, that I do not know of any similar system for dealing with cell-phone data; so it may be necessary to leave a cell phone at home if there are data files on it that you wish to keep private.

The foregoing, were I to stop now, would frustrate me as many of the articles I have read about this matter have frustrated me. The information provided should be useful to anyone entering the country with important data, providing both a warning about possible difficulties and a suggestion for action. However, the matter at issue here is broader than a scholar's need to have access to a computer and data files. It seems to me to involve a very basic right to privacy. Therefore, when reading about this issue, I wondered where the outrage was. I remain naïve enough to expect some passion when our government spies on us in this way. So I end this with my own very personal sense of outrage. I have written the obligatory letters to my senators and congressman, so far with only one response -- from Pennsylvania Senator Robert P. Casey, Jr. (Neither Sentor Specter nor Congressman Gerlach has responded.) Although I did not expect my letter to provoke a useful response, the reply from Senator was far worse than I expected.² It is not encouraging to know that, should his colleagues in the Senate oblige him to do so, my Senator will give the matter some thought. So I express my outrage here and determine to do my best to provide Customs officials with nothing even vaguely interesting unless they are unusually fascinated by CAD models, should they take my computer in the future. And I will certainly be sure to store data on servers accessible from abroad and at home when I am working out of the country. I trust you will do the same.

-- Harrison Eiteljorg, II

1. There are reports of Muslims being targeted at an alarming rate for such seizures, and one report tells of a computer seized that had not been returned to its owner more than a year later. (See http://www.tripso.com/today/warning-us-customs-and-border-protection-may-confiscate-your-laptop-and-pda/ and http://seattletimes.nwsource.com/html/localnews/2008067440_searches23m0.html 08/08/08).   Return to text.

2. "Please be assured that I am examining the Department's policy and will have your concerns in mind should any related legislation come before the full Senate for consideration." (emphasis added)   Return to text.

For other Newsletter articles concerning the use of electronic media in the humanities, consult the Subject index.

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