Sunday, August 17, 2014

Smartphone & Laptop Searches: Know Your Rights

Smartphone & Laptop Searches: Know Your Rights
By Matthew Hughes
You’ve left the plane and collected your luggage, and the last thing you want to do is submit to a customs search. Getting your souvenirs and taxable items out is a hassle, but nothing like the stomach churning thought of handing over your digital fingerprint to border officials.
Do you know what your rights are when travelling overseas with a laptop, smartphone or hard drive?

Travelling With Data

Flights have never been this cheap. Even with rising fuel costs, it’s possible to zigzag across Europe and America for next to nothing, partially due to the rise of discount airlines like RyanAir and SouthWest Airlines.
flying ryanair   Smartphone & Laptop Searches: Know Your Rights
Similarly, laptops have never been quite this portable. The rise of the affordable ultrabook and the obsolescence of optical media has made laptops cheaper, thinner, faster and thus easier to travel with. Many people never leave the country without their computers.
There are a lot of reasons why you might not want an airport security agent to rifle through your computer:
  • You might be traveling with privileged, confidential documents or files for whom you are personally responsible.
  •  Your laptop might hold personal files, photos or correspondence whom you would rather keep private due to them being of a sensitive or intimate nature.
  • You might just find the idea of someone wandering through your personal files and correspondence makes you incredibly uncomfortable. That’s not unreasonable.
When flying, we consent to put our laptops in separate x-ray bins for inspection. Likewise, depending on the routes we fly, we also consent to turn our phones and laptops on to prove they are genuine. But what about when the scrutiny our devices undergo reaches another level?
We’re going to explore what rights customs and TSA agents have to inspect your mobile devices and computers. First stop? The Great White North.

Flying To Canada

The laws surrounding what (and who) goes into Canada fall under the Customs Act. This permits employees working for the Canada Border Services Agency (CBSA) to stop and search anyone entering Canada from any port of entry, including the land borders with the United States, seaports and airports.
flying flag   Smartphone & Laptop Searches: Know Your Rights
The Customs Act also gives CBSA officers the right to search your laptops, tablets and smartphones in the same way they can search your bags. And they don’t even need a warrant or any suspicion of wrongdoing. Want to learn more? Check out thisprivacy information sheet from the CBSA.

Flying To Australia

I’ve got some bad news for you. Australian customs have the right to inspect laptops and the contents of external hard-drives and removable media. They don’t need a warrant or a court-order, and they don’t need your permission.
As anyone who as ever flown to Australia will attest, as your flight starts to make its descent you’ll be given a boarding card asking you to declare what you are carrying in your luggage, and on your person as Australia has some of the strictest laws in the world on what can be taken into the country.
flying aussiepassport   Smartphone & Laptop Searches: Know Your Rights
There are some things that you’ll be asked to declare that you might expect, such as food, fruit and untreated wood or other natural products. This is due to the country’s fragile ecosystem having been ravaged by non-native species in the past. One surprising thing you’ll have to declare is pornography. Although Australia is a liberal democracy with a number of progressive policies, they’ve got a number of restrictive laws on the books with respect to pornography.
flying melbourne   Smartphone & Laptop Searches: Know Your Rights
If you are traveling into Australia with pornography or sexually explicit material, you will have to declare it. This also applies to homemade films and pictures. Failure to do so is an offense, and can result in legal action or a hefty fine.
And if you declare it, there’s a chance that some embarrassed young customs agent might be given the unenviable task of having to look through the darkest and most depraved recesses of your hard drive.

Flying To The United Kingdom

Glenn Greenwald’s Brazilian partner David Miranda was catching a flight to Rio de Janeiro from Berlin. It was a period when Greenwald was under immense public scrutiny, due to the then recent revelations by Edward Snowden about the depth to which the British and American security services were spying on Internet users, as well as Snowden’s leak of tens of thousands of confidential documents to Greenwald and the Guardian newspaper.
And unfortunately for Miranda, he had a layover in London Heathrow.
flying heathrowt3   Smartphone & Laptop Searches: Know Your Rights
He was detailed for nine hours under Schedule 7 of the UK’s broad-reaching Terrorism Act, 2000. This states that the person seized has to give the examining police officer any information in his possession the officer requests, as well as any artifacts of objects in the suspect’s possession. Any property seized must be returned after seven days.
His laptop and cell phone were seized, as well as other equipment. This was later challenged in the courts, although was found to be lawful. This is an extreme example, although not an isolated one. In 2013, Yulia Zamanskaya – a journalist working for the Voice Of Russia – had her laptop seized in Terminal 4 of Heathrow Airport due to containing material that was deemed to be terrorism-related.
Zamanskaya is a journalist working for a major Russian news publication, so reporting on terrorism is a significant part of her job. But what if you’re not a journalist? What if you’re just a sunburned tourist on your way back home from a beery beach vacation in Benidorm?
Police still have the right to inspect any devices at the border, due to the broad-ranging rules in the Terrorism Act, 2000. Indeed, each year sees 60,000 people have their devices inspected and the data stored therein duplicated and retained. The same laws which saw Miranda and Zamanskaya temporarily being separated from their laptops also apply to you.

Flying To The United States Of America

No surprises here: according to a 2008 ruling made in a federal court, customs agents at U.S. airports can inspect the contents of passengers’ laptop computers. They don’t even need any evidence to do so. The Ninth US Circuit Court of Appeals in San Francisco declared a computer to be no different to a suitcase, car or any other property subject to search at an international border.
flying uspass   Smartphone & Laptop Searches: Know Your Rights
The above ruling also applies to tablet computers and smartphones. If it switches on and you can store things on it, it’s fair game.
There have been numerous challenges to the TSA’s rights to search your electronic devices. The most recent one was brought by Pascal Abidor, whose laptop had undergone a deep forensic search when crossing the border from Canada in 2010. His challenge was summarily dismissed earlier this year.

Encryption Can’t Save You

You have no rights to resist an inspection. With this in mind, you might be tempted to resort to fully encrypting any mediums you travel with. We’ve previously written extensively about Truecrypt, and how it can help secure your hard drive.
Let’s be blunt: encrypting your laptop or smartphone to prevent airport security from inspecting it is at the very least foolish, and massively illegal at its very worst. This is due to most countries having laws which mandate the disclosure of encryption keys on demand. Although, there is one surprising exception.
Let’s start with Canada. There’s not really a single Canadian law surrounding key disclosure. However, there is a broad range of existing legislation that could compel a person to disclose their decryption keys. Feel like refusing? Well, that’s a little something called contempt of court, and can see you banged up for five years.
flying encryption   Smartphone & Laptop Searches: Know Your Rights
But what about Australia? According to the Cybercrime Act, 2001, magistrates can compel a person to provide a police officer with any decryption keys that they feel will unlock any evidential material. Failure to do so caries a maximum penalty of six months imprisonment.
Moving on to the UK, we’ve got the Regulation of Investigatory Powers Act 2000, part III. This requires the disclosure of decrypted information or decryption keys to government representatives with a court order. If you fail to do so, you can expect a maximum of two years in jail.
Three people have been convicted for refusing to surrender their encryption keys, including a science enthusiast suffering from schizophrenia who had no prior criminal record, and only came to the attention of the authorities after sniffer dogs detected a model rocket he was importing from France.
The US is a bit confusing. Firstly, they’ve got quite a forward-thinking constitution which contains something called the Fifth Amendment. This protects people from being forced to incriminate themselves in a criminal trial.
flying constitution   Smartphone & Laptop Searches: Know Your Rights
In the US, the constitution reigns supreme. As a result, it’s incredibly hard to have any key disclosure laws that are effective, whilst being legal under constitutional law.
Despite that, there are some precedents where a court has ordered people to surrender their decryption keys, including a case from 2012 where a Colorado woman was forced to make her laptop readable to the authorities. Amusingly, less than one month later, another court in the element circuit (which covers Florida, Alabama and Georgia) declared that forcing someone to decrypt one’s laptop is a violation of the Fifth Amendment.
However, it’s worth adding that customs and TSA agents have the right to refuse you entry into the country (or at least hold you up for a long time at the airport) for the most spurious of reasons.

The Bottom Line

Whenever you fly abroad, you give your implicit consent for someone to inspect your belongings. The all-seeing rubber-glove of airport security can go through your phone, laptop or tablet, and there’s absolutely nothing you can do about it.
Have you ever had your laptop or hard drive searched? How do you feel about the laws? Sound-off in the comments, below.

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