Protecting Your Laptop from Thieves, Terrorists and CBP

International travelers, beware of what you store on your laptop. As a result of a recent court case, travelers may see increased inspection of laptop computers. On Monday, April 21, 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that CBP may examine the electronic contents of a passenger’s laptop computer and other electronic devices without any suspicion of criminal wrongdoing.

CBP officers at Los Angeles International Airport requested that a passenger returning from the Philippines boot up his laptop. The officers reviewed pictures found on the laptop and found one showing two nude women. Agents with Immigration and Customs Enforcement (“ICE”) were called and the computer was seized after the agents found other images that appeared to be child pornography. The grand jury charged the passenger with various pornography violations. The passenger filed a motion to suppress the information because the government conducted the search without reasonable suspicion and the district court granted the motion. However, the U.S. Court of Appeals for the Ninth Circuit reversed the district court based on a series of cases that demonstrated reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border. One government official analogized that rummaging through a computer's hard drive is no different from looking through a suitcase. Click HERE to read the entire ruling.

What should you do to protect private information? Are you required to provide passwords and encryption information to CBP officials? Deleting browser histories and cookies and encrypting the entire hard drive is something that should be done for security in case the computer is lost or stolen. The courts are divided on the issue of providing passwords and encryption information to CBP. A recent decision, which is being appealed by the government, ruled in favor of the defendant stating disclosure of the information was a violation of his Fifth Amendment rights. While the traveler may decide not to provide the information, CBP may retain the laptop to obtain a warrant requiring the decryption key. Businesses should review their current policies to ensure adequate procedures are in place to safeguard proprietary information. Additionally, employers should instruct employees on how to respond to CBP and other government officials requesting access to the proprietary information.