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Defending Privacy at the U.S. Border 3: Choosing a Strategy

EFF’s Marcia Hofmann and Seth Schoen focus on data privacy-related tactics and precautions one should take when planning to cross the United States border.

Personal Background and Circumstances

Primary things to consider when adopting a strategy

Primary things to consider when adopting a strategy

One thing that we realized was that there really isn’t one strategy that everybody should adopt for protecting data at the border. It depends a lot on you and your personal circumstances, and what your situation is. And so we think that it’s best to think through this in advance and figure out if you have some sensitive factors that might suggest that a certain strategy is more important than another.

One of the factors that we have identified as being potentially important is, for example, your citizenship, or your immigration, or residence status: do you feel like you are particularly vulnerable at the border? I think that United States citizens have an easier time getting across the border than those who are not United States citizens, and I think that certain people feel that they wouldn’t want to jeopardize, for example, their residency status by appearing too difficult at the border. So if you feel that you have certain sensitivities along those lines, it’s worth considering.

Time sensitivities are also important: do you need to be at a particular place at a particular time? If you are detained at the border and questioned, and you’re held up – is it gonna cause a big problem for you?

What kind of tolerance do you have for having difficult interactions with border agents? Do you want a situation where you’re bringing in encrypted data, and you’re asked for your password, and you’re saying: “No, I’m not giving it to you”, or would you feel better in a situation where they say: “We want your password”, and you say: “I don’t know it”? You know, if you are not being difficult because you don’t know something, that certainly, I think, takes some pressure off of you as a person.

Analyzing web access on the trip and some personal background

Analyzing web access on the trip and some personal background

Another question is how important it is for you to have access to data during your journey. I mean, could you consider bringing a blank device over the border and perhaps downloading data when you get there? A related question is how good your Internet access is when you reach your destination. Are you actually going to have logistical capability to download data if you want to do that?

Another thing that’s important to think of is the places that you visited on your trip before entering the country, because I think that certain countries tend to raise certain ‘red flags’ for border agents. For example, in the Arnold case that I mentioned earlier (United States v. Arnold) the defendant was coming back from the Philippines, and I think that raised the ‘red flag’ for border agents because they think that men coming back from certain countries may have been engaging in certain activities that they are on the lookout for. So that’s something to consider.

And then finally, your history with law enforcement: are you likely to get more hassle from border agents because you are of interest to them? We were contacted by a number of people who find themselves being a ‘watched list’ misidentification – do you have problems like that? These are things that are worth thinking about.

So now I’m going to turn it over to Seth, and he’s going to talk to you a bit about some of the precautions that you can take before you travel, and some of the technical strategies that you can use to protect data.

Technical Considerations

Precautions to keep personal data intact on a trip: encryption and online storage

Precautions to keep personal data intact on a trip: encryption and online storage

Seth Schoen speaking:Thanks Marcia! I think something that all travelers can benefit from is both keeping regular backups and encrypting the disks that they are taking on their trip. And I think these are two sides of the same coin because keeping backups is about making sure that you have access to your data, and encrypting your drive is about making sure that other people don’t have access to your data, which are both important security properties. And I think this is true even for reasons beyond border search privacy concerns, and even for people who don’t plan to refuse to tell their password to CBP if asked, for example. Because it’s very easy to lose mobile devices when you’re traveling, people often leave them in taxis. I had a friend who visited me from Brazil, and he managed to lose two mobile phones and a laptop during his trip in San Francisco, on the same trip, in about a week. So these things happen, and I just think, if you only lose one mobile phone or one laptop, it would be much better if that’s encrypted and you have a backup, because then you’ll have this peace of mind while you’re traveling that you’re not going to lose your only copy of something, and that strangers aren’t going to get that information without your knowledge.

And if you do feel that you are going to turn over your password if asked, you still have the advantage at the border that you know whether or not the agents have looked at your information – they are not going to be able to do it without your knowledge or without your cooperation. There’s also of course the possibility of using only online network storage and not carrying things with you.

Taking no personal data with you should do the trick

Taking no personal data with you should do the trick

So we have a lot of thoughts which we’ve talked about in our paper and which we are going to talk about very quickly here, about various ways of not carrying things with you as you cross the border. And of course there are quite a lot of permutations here, quite a lot of ways that you can arrange not to carry things with you. An interesting one if you have a laptop with an easily removable hard drive, or you like using DD, is to use a separate hard drive or a separate hard drive image for your trip, compared to the one that you normally use. Some laptops have hard drive bay right on the side. You can actually have two: keep one at home, use the other for travel. You can also sort of simulate that by making a byte-for-byte image, copy of your hard drive, with DD or with something like Ghost.

Network data storage as a solution

Network data storage as a solution

Another basic concept that’s becoming increasingly popular is to upload something in one place, and then download it in another place. There are some devices like Chromebooks that make this the default behavior. There’s also this important issue that if you aren’t separately encrypting the data that you’ve uploaded, then your network storage service provider will have access to it also, which could be a security vulnerability in itself. So it’s certainly preferable to pre-encrypt before uploading them to network storage provider.

Advantages and downsides of sending digital devices by mail

Advantages and downsides of sending digital devices by mail

I have actually met someone who would send her mobile phone in the mail, because she was very prone to being stopped at the border. She had had it happen several times, she had somehow attracted the interest of the U.S. Customs and Border Protection, and they would stop her on every trip. And so she reached this level of frustration and decided that she was actually going to send her phone in the mail before reentering the United States, and it’s a possibility.

It’s worth noting that things that you send in the mail or with a carrier like FedEx can still be inspected by customs when they enter the country. There’s an interesting question about the circumstances under which they can open letters; I think our conclusion was that under some circumstances they can even open letters, although it’s much more constrained by policy than opening a parcel or package that has a customs declaration. But the big advantage of course to sending something in the mail is not that it won’t be inspected, but that you won’t be getting questioned by Customs and Border Protection at the same time that the thing is being inspected. It will eventually arrive, hopefully; and you won’t have people saying: “What can you tell me about this device you’re carrying with you? Can you unlock it for me?” and so on.

We also think that Customs and Border Protection has no authority to alter or bug equipment without getting a warrant to do so. So we think that as a general matter they can’t just say: “Oh, that’s interesting, this person is mailing a laptop into the country, let’s just put a bug on it”. We don’t think that that would be permitted by law.

Read previous: Defending Privacy at the U.S. Border 2: Agencies and Policies
Read next: Defending Privacy at the U.S. Border 4: Data Encryption

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