Encryption is Evidence of Illegal Activity
Most of our readers will be aware that the Customs Service has a program to search the laptops of selected travelers returning to the United States. Typically, a traveler is asked to step aside, power on the computer, and provide the password so that the computer can be perused ostensibly for contraband. Of course, anyone who experiences this will, at best, find this a huge hassle. Moreover, if you also happen to be trafficking in child pornography or jihadist writings, your trip may get a lot worse at this point. However, what if you’re a mild-mannered businessman — or woman – who’s been abroad on business and just wants to get home with his or her company provided laptop?
The answer is it’s not so pretty. There are many reasons you might not want the government to know the contents of your laptop. For example, your laptop might contain the confidential information of clients for whom you provide highly sensitive and confidential advice. Or, your laptop may contain writings that are privileged communications between yourself and your attorney; or your laptop might contain the confidential intellectual property of your employer which you are bound to keep secret under the terms of your employment contract, unless you are compelled to reveal it through judicial due process. The little kabuki drama that unfolds at Customs is not a judicial due process. So, you may be tempted to simply refuse to provide the password to unlock and/or decrypt the computer. Now what? Read more…