Thursday, September 17, 2009

Laptop Seaches -- Obama's Department of Homeland Security Disappoints, Part II

The Two New Directives from Homeland Security -- Continued

One hesitates to criticize President Obama, for whom so many labored and spent mightily, on the day on which he announced the deeply significant scrapping of the Bush Administration Eastern European missile shield program. Yet, while he has moved forward on defense, Secretary Janet Napolitano has moved backward on civil liberties. It is not clear whether the two unfortunate directives announced by Napolitano on August 27 were specifically considered and approved by the President. One hopes not. A search of the White House website discloses no reference to the DHS directives.

Encryption and The Fifth Amendment Privilege Against Self-Incrimination

In the one reported laptop search case dealing with the Fifth Amendment, In re Boucher, on an odd set of facts, the court upheld Boucher's refusal to give up the password to his PGP- encrypted hard disk containing pornographic photos. At the border Boucher had actually opened the drive, but without revealing his password. The agent saw the rather disgusting pornographic images, but made the mistake of shutting down the laptop before seizing it. Boucher was arrested. The government agents could not later open the drive to develop the evidence so the grand jury subpoenaed Boucher in an attempt to compel him to divulge the password. Boucher refused, citing his Fifth Amendment privilege against self-incrimination, and the court sustained his objection. The government was checkmated.

It is sensible for travelers carrying privileged, confidential or personal information on their laptops to encypt their drives. (In the case of attorneys it may be not only sensible but mandatory.) At the threshold this blocks a border search if the traveler refuses to give up his password. Interestingly, the two Directives do not explicitly deal with this situation. One would have thought, after the decision in Boucher, that guidance would have been given to CBP and ICE agents on what to do when confronted by an encrypted drive and a refusal by a traveler to reveal the password to the drive. Not so.

Instead, the Directives set out a series of steps which CBP or ICE agents should take to seek the help of other federal agencies in decrypting the encrypted drive. There is no suggestion in the Directives that the agents could or should demand that the traveler himself or herself disclose the password. The Directives thus appear to accept the proposition that the Fifth Amendment privilege against self-incrimination may be invoked by a traveler as a bar to disclosure of a password to an encrypted drive, and the border agents must accept that and turn elsewhere for assistance in decryption. This is a significant, though unstated, concession in the Directives. Whoever drafted these things was not eager to draw attention to the civil liberties of targeted travelers even when compelled to respect them. [This, of course, is not the begrudging attitude toward the Constitution that one might have expected from the new administration. I think many assumed that the anti-civil-libertarian policies of the Bush administration would terminate when Obama took office. That unfortunately is proving not to be entirely true. At least not in Secretary Napolitano's shop.]

Comforting though it is to know that one may invoke the Fifth Amendment and decline to give a CBP or ICE agent the password to his/her encrypted drive or file, the traveler must reckon with the possibility that the laptop will thereupon be seized or at least detained (remember that ICE agents can do this at will) while the agents seek technical decryption help from elsewhere in the federal government. Whether they do this in fact we do not know. The traveler must take it on board in any event. He or she might face a delay at the border while the government tries to decrypt the drive or the device in question, or, more likely, the traveler will face a stand off in which the CBP or ICE agent will either give in and let the traveler proceed with his/her laptop or play hardball and seize the laptop, leaving the traveler to proceed without it. From the point of view of the rule of law, this is unexplored territory. The Obama administration and Secretary Napolitano in particular should not have put travelers in this position.

[To be continued.]

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