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Author Topic: New Zealand "Digital Strip Search"  (Read 293 times)
paxmao
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October 04, 2018, 10:04:44 AM
Last edit: October 08, 2018, 12:44:06 PM by paxmao
Merited by suchmoon (4)
 #1

As probably most of you know, there are five countries that share plane travelers information at large. These are named "The Five Eyes".

Uno of these countries is New Zealand. It has recently jumped to the news that now you can be subject to a "digital strip search", which apparently could be applied in US too.

The implication is that you would face a $ 3000 fine if you don't provide your phone and computer passwords .

I don't need to tell anyone that if you have passwords, accounts or any access to crypto in your phone or computer, you should take adequate measure to protect yourself if travelling to any of these countries.
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October 04, 2018, 03:38:32 PM
 #2

The implication is that you would face a $ 3000 fine if you don't provide your phone and computer passwords.

I don't need to tell anyone that if you have passwords, accounts or any access to crypto in your phone or computer, you should take adequate measure to protect yourself if travelling to any of these countries.
That's weird however what about Fifth Amendment Right...?
...most Americans know they have the right not to answer police questions both while in custody or in court...

Also watch this: https://youtu.be/d-7o9xYp7eE
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October 05, 2018, 03:40:06 PM
Merited by vapourminer (1)
 #3

The implication is that you would face a $ 3000 fine if you don't provide your phone and computer passwords.

I don't need to tell anyone that if you have passwords, accounts or any access to crypto in your phone or computer, you should take adequate measure to protect yourself if travelling to any of these countries.
That's weird however what about Fifth Amendment Right...?
...most Americans know they have the right not to answer police questions both while in custody or in court...

Also watch this: https://youtu.be/d-7o9xYp7eE

Above all, the border of a country is a legal limbo for the foreigner. For example, the people that make the decision of letting someone in the US are border agents. They may decide that they "suspect" that someone is there to look for work illegally  and deny entry even if you have a visa to enter (and this does happen). It is quite a jungle.

Sorry for not watching the video, I like text Smiley. I did some research, this is the best text I found.

Quote
...the consequences for refusing to provide your password(s) are different for different classes of individuals. If you are a U.S. citizen, CBP cannot detain you indefinitely as you have a right to re-enter the country. However, agents may escalate the encounter (for example, by detaining you for more time), or flag you for heightened screening during future border crossings. If you are a lawful permanent resident, agents may also raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents might deny you entry to the country entirely

So...

- If you are an US citizen you can call the 5th and, eventually, possible after making you loose a few hours, they will have to let you in. After all, you are entering your country and no-one can prevent you from doing so (I don't know if there are exceptions).

- If you are not, you can (and most likely will) be denied entry. This is at the discretion of the Border Agent, event if you have a visa in place.

However, and here's the ugly thing:

Quote
But whatever your status, whether you choose to provide your passwords or not, border agents may decide to seize your digital devices. While CBP guidelines set a five-day deadline for agents to return detained devices unless a CBP supervisor approves a lengthier detention, in practice, device detentions commonly last many months.

Which constitutes a good gun pointed at your head.















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October 05, 2018, 03:56:31 PM
 #4

The implication is that you would face a $ 3000 fine if you don't provide your phone and computer passwords.

I don't need to tell anyone that if you have passwords, accounts or any access to crypto in your phone or computer, you should take adequate measure to protect yourself if travelling to any of these countries.
That's weird however what about Fifth Amendment Right...?
...most Americans know they have the right not to answer police questions both while in custody or in court...

Also watch this: https://youtu.be/d-7o9xYp7eE

Above all, the border of a country is a legal limbo for the foreigner. For example, the people that make the decision of letting someone in the US are border agents. They may decide that they "suspect" that someone is there to look for work illegally  and deny entry even if you have a visa to enter (and this does happen). It is quite a jungle.

Sorry for not watching the video, I like text Smiley. I did some research, this is the best text I found.

Quote
...the consequences for refusing to provide your password(s) are different for different classes of individuals. If you are a U.S. citizen, CBP cannot detain you indefinitely as you have a right to re-enter the country. However, agents may escalate the encounter (for example, by detaining you for more time), or flag you for heightened screening during future border crossings. If you are a lawful permanent resident, agents may also raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents might deny you entry to the country entirely

So...

- If you are an US citizen you can call the 5th and, eventually, possible after making you loose a few hours, they will have to let you in. After all, you are entering your country and no-one can prevent you from doing so (I don't know if there are exceptions).

- If you are not, you can (and most likely will) be denied entry. This is at the discretion of the Border Agent, event if you have a visa in place.

However, and here's the ugly thing:

Quote
But whatever your status, whether you choose to provide your passwords or not, border agents may decide to seize your digital devices. While CBP guidelines set a five-day deadline for agents to return detained devices unless a CBP supervisor approves a lengthier detention, in practice, device detentions commonly last many months.

Which constitutes a good gun pointed at your head.



The Fifth amendment doesn't apply to when a US citizen travels to Australia , Canada , New Zealand or the United Kingdom . It only applies if they arrive back in the USA.
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October 05, 2018, 05:02:40 PM
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That's weird however what about Fifth Amendment Right...?
...most Americans know they have the right not to answer police questions both while in custody or in court...

Also watch this: https://youtu.be/d-7o9xYp7eE

The actual amendment that pertains here is the 4th - prohibition against searches and seizures without probable cause - but border crossings are an exception, even for US citizens returning to the US. You can still refuse to be searched but you won't be allowed back into the country.

IANAL, but I don't think a law compelling US citizens to supply computer or phone passwords to US border/customs agents would fly; citizens of other countries would be fair game, though.

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October 05, 2018, 08:07:42 PM
Merited by mdayonliner (1)
 #6

The Fifth amendment doesn't apply to when a US citizen travels to Australia , Canada , New Zealand or the United Kingdom . It only applies if they arrive back in the USA.

He is referring to my statement "---which apparently could be applied in US too."
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October 06, 2018, 07:41:52 AM
Merited by paxmao (1)
 #7

The problem with this type of legislation is that it escalates the difficulty in detecting the real "criminals". It will probably be an inconvenience to the average traveller, and it may trap the odd unsophisticated tax evader, but the major criminals will just use more advanced protection methods. In these days of encrypted data transfer over the Internet, there is no real need to carry any incriminating evidence on a computer.
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October 06, 2018, 05:56:54 PM
Merited by paxmao (1)
 #8

It's perfect to make traveler feel unsafe/violated while most criminals could evade that easily such as store all data on cloud storage with encryption and only bring Features phone.
"Digital Strip Search" would be useful if there's good/moderate proof and everyone who asked to comply is provided with the proof.
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October 06, 2018, 09:55:12 PM
Merited by paxmao (2)
 #9

Can you check the links in the OP? I don't see anything about New Zealand in the link you posted, and the link is an article about the US boarder protection agents searching phones/laptops when they enter the US. Nor do I see anything about any kind of fine for not complying.
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October 06, 2018, 10:10:48 PM
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Can you check the links in the OP? I don't see anything about New Zealand in the link you posted, and the link is an article about the US boarder protection agents searching phones/laptops when they enter the US. Nor do I see anything about any kind of fine for not complying.

Here's the article I saw about it: Business Insider

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October 06, 2018, 10:37:35 PM
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Can you check the links in the OP? I don't see anything about New Zealand in the link you posted, and the link is an article about the US boarder protection agents searching phones/laptops when they enter the US. Nor do I see anything about any kind of fine for not complying.

Here's the article I saw about it: Business Insider


According to the article, officials need "reasonable cause" (which I presume to be similar to probable cause) that you have broken a law in order to demand your phone password. This is very different from being able to demand a password simply because you are crossing the boarder.

The law only applies to physical devices and not to cloud passwords. The law nevertheless is not something I support.

I suggest to have a "fresh" device if you plan on entering New Zealand, and have your information stored in the cloud in a way that you can access it once you are past the border.
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October 07, 2018, 04:57:51 AM
Last edit: October 07, 2018, 07:07:54 AM by xtraelv
Merited by paxmao (2), vapourminer (1), ETFbitcoin (1), taikuri13 (1), MagicSmoker (1)
 #12

It is not unique to New Zealand. The law has been in place for a long time - it has just been revamped. The only new thing is the introduction of potential fines.

From 2013
https://fyi.org.nz/request/1357-grounds-for-search-of-electronic-devices-at-the-border
Previous legislation that provided those powers were : Part 12 of the Customs and Excise act 1996 and the Search and Surveillance act 2012

The 2018 act specifically states:

Code:
However, there is no power under subsection (2) to search material (of any kind) that is accessible from the device but is not stored in the device

http://www.legislation.govt.nz/act/public/2018/0004/latest/whole.html#DLM7039503

Code:
228 Data in electronic devices that are subject to control of Customs
(1)
This section applies to any electronic device—
(a)
that is subject to the control of Customs; or
(b)
that a Customs officer has reasonable cause to suspect is subject to the control of Customs.
(2)
Data in the device may be searched in accordance with the following powers:
Powers if threshold met

(a)
the power to make an initial search if a Customs officer has reasonable cause to suspect that—
(i)
a person in possession of the device has been, is, or is about to be involved in the commission of relevant offending:
(ii)
an importer or exporter of a device (other than a person to whom subparagraph (i) applies) has been, is, or is about to be involved in the commission of relevant offending:
(iii)
an unaccompanied device has been, is, or is about to be used in the commission of relevant offending and the importer or exporter cannot be reasonably identified or located:
(b)
the power to make a full search if a Customs officer has reasonable cause to believe that evidential material relating to relevant offending is in the device:
(c)
the power to require a user of the device to provide access information and other information or assistance that is reasonable and necessary to allow a person exercising a power under paragraph (a) or (b) to access the device:
Powers with no threshold

(d)
the power to make a full search of a stored value instrument (including power to require a user of the instrument to provide access information and other information or assistance that is reasonable and necessary to allow a person to access the instrument):
(e)
the power to make a full search of unaccompanied electronic storage media that is an optical disc imported other than for personal use for the purpose of determining whether it contains any pirated copy within the meaning of Part 7 of the Copyright Act 1994.

You can also be refused entry, have your Visa withdrawn and be detained.

Canada - The Customs Act gives CBSA the ability to search your laptop or phone.
https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/
Quote
If your laptop or mobile device is searched, it should be searched in line with this policy and, in that context, you will likely be asked to provide your password. If you then refuse to provide your password, your device may be held for further inspection. According to the policy, officers may only examine what is stored within a device, which includes, for example, photos, files, downloaded e-mails and other media. Officers are advised to disable wireless and internet connectivity, limiting access to any data stored external to the device, for instance, on social media or in a cloud.

There is a broad range of existing legislation that could compel a person to disclose their decryption keys.

Code:
PART VI
Enforcement
Powers of Officers
Search of the person

98 (1) An officer may search

(a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada,

(b) any person who is about to leave Canada, at any time prior to his departure, or

(c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area,

if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.

Marginal note:Person taken before senior officer

(2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place.

Idem

(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched.

Marginal note:Search by same sex

(4) No person shall be searched under this section by a person who is not of the same sex, and if there is no officer of the same sex at the place at which the search is to take place, an officer may authorize any suitable person of the same sex to perform the search.

Examination of goods

99 (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;

(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;

(c) at any time up to the time of exportation, examine any goods that have been reported under section 95 and open or cause to be opened any package or container of such goods and take samples of such goods in reasonable amounts;

(c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;

(d) where the officer suspects on reasonable grounds that an error has been made in the tariff classification, value for duty or quantity of any goods accounted for under section 32, or where a refund or drawback is requested in respect of any goods under this Act or pursuant to the Customs Tariff, examine the goods and take samples thereof in reasonable amounts;

(d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined for any goods accounted for under section 32, examine the goods and take samples thereof in reasonable amounts;

(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof; or

(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.
http://laws-lois.justice.gc.ca/eng/acts/C-52.6/page-27.html#h-76

You can also be refused entry, have your Visa withdrawn and be detained.


Australia - Australian Customs and Border Patrol Service (ACBPS) has an unfettered legal right to seize your possessions, without requiring a warrant, when you enter Australia.

Quote
Copying documents

After examining an item, Border Force officers may copy a document where they are satisfied that the document may contain information relevant to prohibited goods, an offence against the Customs Act or a prescribed Act, or to certain security matters. A ‘document’ includes information stored on mobile phones, SIM cards, laptops, personal electronic recording apparatus and computers.
There is no requirement for the traveller carrying the documents to be present when a document is copied.
https://www.homeaffairs.gov.au/trav/ente/goin/departing/baggage-examination-and-questioning

Code:
CUSTOMS ACT 1901 - SECT 189 Searching
                   The power of an officer to search shall extend to every part of any ship, aircraft or installation, and shall authorize the opening of any package, locker, or place and the examination of all goods.

Code:
CUSTOMS ACT 1901 - SECT 201A Person with knowledge of a computer or a computer system to assist access etc.

(1) An executing officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:

(a) access  data  held in, or accessible from, a computer that is on warrant premises;

(b) copy the  data  to a  data storage device ;

(c) convert the  data  into documentary form.

(2) The magistrate may grant the order if the magistrate is satisfied that:

(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having committed the offence stated in the relevant warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(c) the specified person has relevant knowledge of:

(i) the computer or a computer network of which the computer forms a part; or

(ii) measures applied to protect  data  held in, or accessible from, the computer.

(3) A person commits an offence if the person fails to comply with the order.

Penalty: 6 months imprisonment.


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.

Under the Cybercrime Act, 2001, The court can compel a person to provide a police officer with any decryption keys that they feel will unlock any evidential material.

You can also be refused entry, have your Visa withdrawn and be detained.

United Kingdom - Police still have the right to inspect any devices at the border, due to the broad-ranging rules in the Terrorism Act, 2000. Around 60,000 people have their devices inspected and the data stored therein duplicated and retained annually.
https://www.makeuseof.com/tag/smartphone-laptop-searches-know-rights/

In 1998 the UK customs were already seizing laptops and searching for porn.
http://news.bbc.co.uk/2/hi/science/nature/150465.stm

These are their powers under the Commissioners for Revenue and Customs Act 2005
Code:
9Ancillary powers
(1)The Commissioners may do anything which they think—
(a)necessary or expedient in connection with the exercise of their functions, or
(b)incidental or conducive to the exercise of their functions.
(2)This section is subject to section 35.
https://www.legislation.gov.uk/ukpga/2005/11/section/33 That is a wide ranging power !

Code:
Search and seizure of electronic media
Paragraphs 15A, 25A and 25B of schedule 2 to the Immigration Act 1971, and
section 47 of the Immigration Act 2016 provide that where there are reasonable
grounds to believe that relevant documents are at the premises, electronic devices
(such as mobile phones, laptops or tablet computers), that may contain such
documents for which the search is being conducted, may be searched and seized in
certain circumstances.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/578886/Search-and-seizure_v3.pdf

There is also 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.

You can also be refused entry, have your Visa withdrawn and be detained.

United States - 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.

While Citizens of the USA are protected by their constitution (Residents to a certain extent) - Non-residents are not protected by their constitution.
So far there have been conflicting court cases regarding TSA and Customs warrant-less seizures of data.

You can also be refused entry, have your Visa withdrawn and be detained.

The Canadian Government warns their Citizens about the US Customs groundless searches !
https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc2

Code:
Cell phone, tablet, and laptop searches at a foreign border
Canadians need to know that U.S. border officials have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone. Although infrequent, basic searches of electronic devices by U.S. officers do not require evidence of contraventions. They are performed without grounds as a routine border inspection. However, according to a new U.S. Customs and Border Protection directive, advanced searches by U.S. officials, which involve connecting to external equipment to review, copy or analyze the contents of a device, require reasonable suspicion of illegal activity or if there is a national security concern. It is important to note that the powers of border officials in many foreign countries will vary from those that exist in Canada.

According to the directive, in both basic and advanced searches, U.S. border officers may only inspect data that resides on a device and is accessible through its operating system or through other software, tools or mobile applications. They may not intentionally access information stored remotely, for instance in a cloud. To avoid doing so, they are required to ask travellers to disable internet connectivity, or where authorized, they should disable it themselves.

Travellers who are concerned about groundless searches or other aspects of the U.S. directive may wish to exercise caution and either limit the devices they bring when travelling to foreign countries, including the U.S., or remove sensitive information from devices that could be searched. Another potential measure – particularly if travelling for work and carrying protected information, for instance information subject to solicitor-client privilege – is to store it in a secure cloud which would allow you to retrieve it once you arrive at your destination.

Sources:
https://www.itnews.com.au/blogentry/laptops-smartphones-are-fair-game-for-customs-355205
https://www.makeuseof.com/tag/smartphone-laptop-searches-know-rights/
https://www.homeaffairs.gov.au/trav/ente/goin/departing/baggage-examination-and-questioning

EDIT:

 

The actual amendment that pertains here is the 4th - prohibition against searches and seizures without probable cause - but border crossings are an exception, even for US citizens returning to the US. You can still refuse to be searched but you won't be allowed back into the country.

IANAL, but I don't think a law compelling US citizens to supply computer or phone passwords to US border/customs agents would fly; citizens of other countries would be fair game, though.


Both amendments apply. But the 5th is most relevant.

The 4th
Quote
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

The actual search would fall under this. But it is already accepted that physical searches by Customs agents is legal and reasonable.

The electronic search is just an extension of this. The question is whether the private nature of such data makes it  "reasonable".
Retention of the data also makes it not just a search but a seizure. It the data kept ? Who owns the data ?
I'm sure intellectual property rights and "copying and keeping a copy of property"were not considered when the constitution was written.

The 5th
Quote
Protects individuals from being compelled to be witnesses against themselves in criminal cases.

Having to disclose a password or encryption key would fall under this category. (Self incrimination)

The current argument is that they are not "in the United States" but in "Customs pre-clearance".

U.S. military bases overseas are not considered U.S. soil for the purposes of citizenship - the argument is that Customs pre-clearance is the same.
https://web.archive.org/web/20090206024519/https://www.state.gov/documents/organization/86755.pdf

Can you check the links in the OP? I don't see anything about New Zealand in the link you posted, and the link is an article about the US boarder protection agents searching phones/laptops when they enter the US. Nor do I see anything about any kind of fine for not complying.

Here's the article I saw about it: Business Insider


According to the article, officials need "reasonable cause" (which I presume to be similar to probable cause) that you have broken a law in order to demand your phone password. This is very different from being able to demand a password simply because you are crossing the boarder.

The law only applies to physical devices and not to cloud passwords. The law nevertheless is not something I support.

I suggest to have a "fresh" device if you plan on entering New Zealand, and have your information stored in the cloud in a way that you can access it once you are past the border.


Reasonable cause definition:
Quote
To have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same facts, to reasonably conclude the same thing.

Probable cause definition:
Quote
reasonable grounds to believe that a particular person has committed a crime, especially to justify making a search or preferring a charge.

I agree - take a fresh device or buy a new hard-drive.

I wouldn't recommend cloud storage for critical private information. Anything on the internet is vulnerable and it is potentially there forever. You potentially have multiple foreign nations trying to get access to it.
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October 07, 2018, 12:21:53 PM
 #13

Outstanding overview, xtraelv!

...
The Canadian Government warns their Citizens about the US Customs groundless searches !
https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc2

Talk about the pot calling the kettle black...



The actual amendment that pertains here is the 4th...


Both amendments apply. But the 5th is most relevant.

It's a good thing I inserted the classic IANAL disclaimer!


Retention of the data also makes it not just a search but a seizure. It the data kept ? Who owns the data ?
I'm sure intellectual property rights and "copying and keeping a copy of property"were not considered when the constitution was written.
...
Having to disclose a password or encryption key would fall under this category. (Self incrimination)

The current argument is that they are not "in the United States" but in "Customs pre-clearance".

Interesting. I wonder if there is an old case - prior to the telecommunications era, that is - in which a US customs agent was challenged for copying the written contents of letters/manuscripts of a citizen returning to the country, as that would provide fairly direct precedent. Nevertheless, it is clear that if you leave the US many of your basic rights will be suspended or, at least, weakened, upon your return.


I wouldn't recommend cloud storage for critical private information. Anything on the internet is vulnerable and it is potentially there forever. You potentially have multiple foreign nations trying to get access to it.

Yep, I totally agree with this. I don't keep anything critical on cloud services like OneDrive, DropBox, etc. and just assume that malicious (or otherwise) state actors can access cloud services at any time they please. Veracrypt for the win!

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October 07, 2018, 04:26:31 PM
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Retention of the data also makes it not just a search but a seizure. It the data kept ? Who owns the data ?
I'm sure intellectual property rights and "copying and keeping a copy of property"were not considered when the constitution was written.
...
Having to disclose a password or encryption key would fall under this category. (Self incrimination)

The current argument is that they are not "in the United States" but in "Customs pre-clearance".

Interesting. I wonder if there is an old case - prior to the telecommunications era, that is - in which a US customs agent was challenged for copying the written contents of letters/manuscripts of a citizen returning to the country, as that would provide fairly direct precedent. Nevertheless, it is clear that if you leave the US many of your basic rights will be suspended or, at least, weakened, upon your return.

In Arizona v. Hicks a police officer was legally searching an apartment, observed a Stereo he believed was suspicious, copied the serial number on the stereo, and later determined it was in fact stolen. The Supreme court held the copying of the serial number did not constitute a seizure. This precedent was later expanded to also include photographs taken of items in plain view.

There are two cases involving wiretapping, Berger v. New York, and Katz v. US, and in both cases the court referred to the act of wiretapping as a "Search and seizure" with the later case involving a case in which the government was recording a conversation.

Based on the above, retaining the data would likely constitute a seizure. However my understanding is that CBP will often search electronic devices before the person is allowed to enter into the country, and the search will be complete prior to entry. If they observe evidence of a crime, they can apply for a search warrant to seize the data.



I wouldn't recommend cloud storage for critical private information. Anything on the internet is vulnerable and it is potentially there forever. You potentially have multiple foreign nations trying to get access to it.

Yep, I totally agree with this. I don't keep anything critical on cloud services like OneDrive, DropBox, etc. and just assume that malicious (or otherwise) state actors can access cloud services at any time they please. Veracrypt for the win!


I would disagree with this, provided however that you independently encrypt the data you have on a cloud service, and keep the decryption keys exclusively stored locally. This is especially true in the context of border crossings. In general, you are going to be subject to having electronic devices searched at every border crossing throughout the world, and as the OP points out, in some cases you may be compelled to give up passwords and decryption keys to files stored locally. However, in general (as is the case in the US), your cloud data is not subject to search when you cross boarders.
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October 08, 2018, 12:10:14 PM
Merited by vapourminer (1)
 #15

]I would disagree with this, provided however that you independently encrypt the data you have on a cloud service, and keep the decryption keys exclusively stored locally. This is especially true in the context of border crossings. In general, you are going to be subject to having electronic devices searched at every border crossing throughout the world, and as the OP points out, in some cases you may be compelled to give up passwords and decryption keys to files stored locally. However, in general (as is the case in the US), your cloud data is not subject to search when you cross boarders.

Congress Passes CLOUD Act Governing Cross-Border Law Enforcement Access to Data


Yahoo $250,000 daily fine over NSA data refusal was set to double 'every week


When it is on the cloud it is easy to copy the data. Even when it is encrypted it allows them to store the data forever. To be decrypted at a later stage.

It only takes a law-change, a backdoor, technological breakthrough or court issued warrant to compel you to hand over the encryption keys.

It really depends on the nature of the data.

Just a few reasons to be careful:

Countries change:

President Trump late Saturday escalated his rhetoric in urging supporters to support Republicans in the midterm elections, warning that Democrats have become "too extreme and too dangerous to govern."
Source: https://thehill.com/homenews/campaign/410272-trump-attacks-dems-as-too-dangerous-to-govern-in-plea-for-gop-midterm

This may only be rhetoric - but it could also turn into something else.

Sexual persecution:
In Russia same-sex sexual activity between consenting adults in private was decriminalized in 1993.
Russian gay propaganda law was introduced in 2013
In January 2016, the State Duma rejected a proposal by the Communist Party to punish people who publicly express their homosexuality with fines and arrests.
https://en.wikipedia.org/wiki/Russian_gay_propaganda_law
https://en.wikipedia.org/wiki/LGBT_rights_in_Russia

https://en.wikipedia.org/wiki/Adultery#Punishment

http://www.futurescopes.com/romance/love-and-sex/3243/countries-where-sex-outside-marriage-crime

Religious reasons:
https://en.wikipedia.org/wiki/Persecution_of_Christians#Current_situation_(1989_to_present)
https://en.wikipedia.org/wiki/Persecution_of_Muslims#Current_situation_(1989_to_present)
https://en.wikipedia.org/wiki/Discrimination_against_atheists

Financial reasons:
https://en.wikipedia.org/wiki/Legality_of_bitcoin_by_country_or_territory
https://en.wikipedia.org/wiki/Executive_Order_6102

"Dangerous MEMEs"
https://translate.google.com/translate?hl=en&sl=auto&tl=en&u=https%3A%2F%2Fwww.bbc.com%2Frussian%2Fnews-45062731

When I asked a Russian friend what their border policy was - whether they can seize your laptop or phone and require you to disclose your password.

He smiled and said " They don't need a password"

It made me think:

While they may be living in a less democratic regime - I very much doubt that the spying that goes on is much different.

They may require you to give them your password but it only makes it easier for them.

I think perception is the difference. Sometimes I wonder if we live in delusional freedom when we have so much of our privacy stripped away.
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October 08, 2018, 12:35:58 PM
 #16

Can you check the links in the OP? I don't see anything about New Zealand in the link you posted, and the link is an article about the US boarder protection agents searching phones/laptops when they enter the US. Nor do I see anything about any kind of fine for not complying.

Done. Sorry, I pasted twice the same one, now the 3rd should refer to NZ
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October 08, 2018, 12:38:49 PM
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It is not unique to New Zealand. The law has been in place for a long time - it has just been revamped. The only new thing is the introduction of potential fines.
...

I think that it now includes the obligation to provide passwords that was not mentioned before.

Yes, it still does not include cloud stored info.
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October 08, 2018, 02:06:01 PM
Last edit: October 08, 2018, 04:59:26 PM by xtraelv
 #18

The Fourth Amendment to the US Constitution generally forbids “unreasonable searches and seizures” by the government does not apply to border searches because of the so-called “border search exception.”  . The Supreme Court has held that at the border (which includes international ports of entry like airports), the government has broad authority “pursuant to the longstanding right of the sovereign to protect itself by stopping and examining
persons and property crossing into this country.”

Source: American Association of University Professors (AAUP)

It is not unique to New Zealand. The law has been in place for a long time - it has just been revamped. The only new thing is the introduction of potential fines.
...

I think that it now includes the obligation to provide passwords that was not mentioned before.

Yes, it still does not include cloud stored info.

Yes-  it includes a new NZ requirement to give your password and ability to give heavy fines for failing to comply:
https://nzccl.org.nz/content/customs-able-demand-unlockpasswords-border

The reality is that they could already search your laptop and ask for your password.
Failing to provide your password would have resulted in either:
- a search warrant being applied for - requiring you disclose the password
- having your visa cancelled and being denied entry. This would result in detention and a removal order.  A removal order comes with a 2 year ban and would exclude you from numerous other countries.

The fine just give them an additional tool to threaten with. They can potentially detain you until the fine is paid and then execute the removal order.

New Zealand is a pussycat in comparison to the USA.

You are more likely to get searched for "illegal Apples" than for drugs or have your laptop searched. (NZ doesn't have as much of a problem with imported drugs as the US)

The ministry of primary industries (MPI) will ask you and if necessary search you for fruit and meat products that could bring in foreign diseases. (Yes really - I'm telling the truth) They have fruit sniffing dogs.


The NZ customs officers do not have guns or weapons .  If you are friendly and polite to them they will be polite and treat you like a customer rather than a suspect.
They do usually have a armed police officer nearby (or in case of ships) - someone from the Defence Force.

The NZ police normally do not wear guns. They only have access to guns in locked in a strongbox their car.
Their use of guns is extremely strict. http://www.police.govt.nz/news/release/3376
Some specially trained officers carry a Tazer.

The only exceptions to this is that the police at the airport have guns and at Parliament and when protecting foreign officials.

Even Aviation security (like the TSA) do not have guns !

When a New Zealand police officer sees a criminal with a gun they back off and call in a specialized unit called the "armed offenders squad" (AOS = SWAT team) or Anti-Terrorism Unit (In case of Terrorist threat) - I'm not kidding.

Most police officers there will smile, talk to you politely and be helpful.

They rarely have shootouts - it would make national news for months !

Quote
The rare sight of armed police marching through Richmond streets was a “necessary response to a potentially dangerous situation” that developed after two men took off following the incident,
http://nelsonweekly.co.nz/2017/05/armed-police-swoop-on-richmond-property/

If you break down on the side of the road as a tourist. The police will probably stop and assist. They are ridiculously friendly there.
https://www.youtube.com/watch?v=f9psILoYmCc
https://www.youtube.com/watch?v=rCI4uzNMUhs

LOL -if you are from the USA have a look at how they arrest people in New Zealand.
https://www.youtube.com/watch?v=g4IiiWCOfFc

US Border Control checks peoples social media accounts.

https://www.cnet.com/news/border-patrol-agents-checking-facebook-profiles-trump-immigration-ban/
https://www.theverge.com/2017/1/30/14438280/trump-border-agents-search-social-media-instagram
https://www.theverge.com/2016/12/22/14066082/us-customs-border-patrol-social-media-account-facebook-twitter

USA was doing it to citizens already in 2011 - requiring to provide passwords:

https://www.youtube.com/watch?v=slosuXkqBnM ACLU advice
https://www.youtube.com/watch?v=uVtBS9HC46w The search from 2011
https://www.youtube.com/watch?v=pX7q-bltPR8 The ruling that the 1st and 4th amendment don't apply to border searches.
https://www.youtube.com/watch?v=fw79gifIWvQ
https://www.youtube.com/watch?v=R-DkGncSc2U


Quote
United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008), is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports
https://en.wikipedia.org/wiki/United_States_v._Arnold

Quote
United States v. Cotterman,[4] (9th Cir. en banc 2013), is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that property, such as a laptop and other electronic storage devices, presented for inspection when entering the United States at the border may not be subject to forensic examination without a reason for suspicion, a holding that weakened the border search exception of the Fourth Amendment to the United States Constitution.
https://en.wikipedia.org/wiki/United_States_v._Cotterman

Code:
July 31, 2017
FAQs on Border Inspection
NOTE: The following general information is not a substitute for legal advice. You should consult an attorney if
you have specific legal questions about your particular situation.
1. Do I have the same legal rights at the border that I would elsewhere in the United States?
No, because of the so-called “border search exception.” The Fourth Amendment to the US Constitution
generally forbids “unreasonable searches and seizures” by the government. However, the Supreme Court has
held that at the border (which includes international ports of entry like airports), the government has broad
authority “pursuant to the longstanding right of the sovereign to protect itself by stopping and examining
persons and property crossing into this country.” That heightened governmental interest in security,
combined with a lower expectation of privacy at the border than in the interior, has led the Supreme Court to
conclude that “routine” border searches are “not subject to any requirement of reasonable suspicion,
probable cause, or warrant.” However, a class of “non-routine” border searches require at least some level of
particularized suspicion, if they are particularly intrusive, destructive, or offensive.
Although the Supreme Court has not addressed specifically the search of electronic devices at the border,
other federal courts generally agree that such searches do not require even reasonable suspicion—consistent
with the general rule. One exception is the US Court of Appeals for the Ninth Circuit (covering Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), which held in 2013 that reasonable
suspicion must underlie the “forensic examination” of a computer hard drive taken at the border.
Given this legal landscape, US Customs and Border Protection (CBP) claims broad authority to search and
seize electronic devices at the border, and has issued Directive No. 3340-049 on the Border Search of
Electronic Devices Containing Information (hereafter referred to as the “Directive”).
2. Didn’t the Supreme Court rule that the police must get a warrant before searching someone’s cell
phone?
Yes, but that case did not involve a border search. In Riley v. California, 134 S. Ct. 2473 (2014), the Supreme
Court held that a warrant is generally required before a search of a cell phone seized incident to arrest. While
there is an argument that similar reasoning could be applied to border searches, so far, lower courts have
typically declined to extend Riley to limit border searches of electronic devices.
3. So could my laptop, phone, or other electronic device be searched if I am a US citizen returning from
traveling abroad?
Yes, even if you are a US citizen or a lawful permanent resident (LPR, or “green card” holder). According to the
CBP (https://www.cbp.gov/sites/default/files/documents/inspection- electronic-devices-tearsheet.pdf), a
2
traveler may be chosen for inspection for many different reasons (for example, randomly, or because his or
her name matches a “person of interest” in the government’s databases, or because his or her travel
documents are incomplete). As DHS itself has emphasized, the Equal Protection Clause forbids intentional
discrimination by the federal government on account of race, religion, or ethnicity, and thus these should not
serve as a reason or factor for conducting discretionary border searches.
4. What about the data on my phone, computer, or other electronic device?
The Directive allows CBP officers and border agents to search travelers’ electronic devices, including “any
device that may contain information, such as computers . . . mobile phones . . . and any other electronic or
digital devices,” CBP agents may swipe through your phone or look through the documents on your computer.
The government also claims the authority to copy the data on your electronic devices. After the information
on the devices has been reviewed, if no probable cause exists to seize that information, any copies of the
information must be destroyed and the devices must be returned, ordinarily within seven days of the
determination of no probable cause
Under the Directive, CBP officers may share copies of information contained in electronic devices “with
federal, state, local, and foreign law enforcement agencies to the extent consistent with applicable law and
policy.” And the Directive provides that CBP officers “will promptly share any terrorism information
encountered in the course of a border search with elements of the federal government responsible for
analyzing terrorist threat information.”
5. Can CBP agents ask for my thumbprint or passcode/PIN to unlock my electronic device, or for my email
or social media passwords?
Yes, even if you are a US citizen or a lawful permanent resident (LPR, or “green card” holder). The law on
whether you are legally required to comply is unsettled.
Regarding the information required to unlock your electronic device, it has been reported that CBP takes the
position that it has the right to obtain and keep passwords as necessary to facilitate digital searches of a
device that has been detained.
Regarding email and social media, some privacy experts contend that the “border search exception” would
not apply to a CBP search of online accounts because the data is hosted at data centers around the world, not
on the device carried through the border. However, this legal issue has not been settled, and as a practical
matter, once CBP gains access to your device, CBP will have access to your signed-in online applications
(Facebook, Twitter, etc.).
6. What if I refuse to provide my PIN or passwords?
If you are a US citizen, you cannot legally be denied entry into the United States, but you may be detained and
delayed, and there is a chance your phone, laptop, or other electronic device will be seized. If you are a lawful
permanent resident (LPR, or “green card” holder), in addition to the complications that a US citizen may face,
a hearing before an immigration judge might be required. If you are a foreign national (for example, a visa
3
holder), and you are perceived as failing to cooperate, CBP might deny you entry.
7. Might the government keep my phone, computer, or other electronic device?
The Directive authorizes the detention of electronic devices, or information copied from them, for “a brief,
reasonable period of time to perform a thorough border search,” whether conducted on- or off-site. Absent
“extenuating circumstances,” the detention of devices “ordinarily should not exceed five (5) days.”
8. What should I do if CBP asks to search my phone, laptop, or other electronic device, or for my
passwords?
CBP has the legal authority to perform a routine search of electronic devices that you carry across the border.
If CBP decides to question you, or inspect your electronic device(s), you should never lie to or attempt to
deceive CBP personnel, or try to obstruct the investigation (for example, by deleting data). CBP personnel are
federal agents, and lying to federal agents or knowingly interfering with their investigation is a crime.
Each individual should assess the risks and rewards of refusing a request from a CBP or ICE official. For Foreign
Nationals entering the United States, non-compliance can be grounds for the denial of entry and deportation.
For US citizens or legal residents, it may result in detainment of your device and/or costly delays to you (for
example, missed flights). If you have material on your device that you feel is sensitive or proprietary, it is
recommended that you tell the CBP/ICE agent this and ask that they take this into consideration when
conducting their search.
In conjunction with the Knight First Amendment Institute at Columbia University, the AAUP is seeking
information from any faculty members who have had their cell phones or other electronic devices searched
by US border patrol officers at the nation’s borders while traveling internationally. If you have been subject to
such a search please send an email with a brief description of your experience if possible and your contact
information to katie.fallow@knightcolumbia.org. Your information will remain confidential.
9. What should I do to protect my data when traveling abroad?
If you do not want a particular electronic device searched, do not travel internationally with it. You should be
wary about including on a laptop that you take overseas any financial or other personal information that you
would not want viewed without your permission. If you need to travel internationally with electronic devices,
the safest course is to travel with devices that contain only the specific files needed for the trip. If your device
contains controlled software or sensitive data—particularly data that may be controlled under federal or state
law or regulations—it is recommended that you do not travel with it, especially internationally. If a device is to
be used only for making presentations, consider taking a memory stick or storing the presentation on a cloudbased
server instead. If you are using a device for other purposes (such as email), consider taking a “clean”
computer that does not include the restricted software, data, or other sensitive information.
10. Is the inspection of your IT device part of a new policy or law that Customs and Border Patrol (CBP) and
Immigration and Customs Enforcement (ICE) agents enforce?
4
No, the ability of Immigration and Customs officials to search your personal belongings when crossing a
border in order to ensure that no violation of US law has occurred is one of the key purposes of having
inspections at the points of entry and exit. With the increase in everyday use of technology by average
citizens, the expansion of searches into technological devices traveling with them occurred years ago. In 2013,
a DHS assessment of the practice claimed that the “clear and longstanding” authority “to conduct border
searches without suspicion or warrant” extends to searches of electronic devices, and that imposing a
reasonable suspicion requirement on such searches “would be operationally harmful without concomitant
civil rights/civil liberties benefits.” DHS therefore concluded that the Directive does not violate the Fourth
Amendment, and it rejected calls to adopt a reasonable suspicion standard as a policy choice.
11. How often do searches of electronic devices occur?
While the topic has hit social media venues quite a bit in early 2017 given a few high profile incidents,
according to the New York Times, the number of searches has been relatively low. In the article, a US Customs
agency spokesman quoted said that only "4,444 cellular phones and 320 other electronic devices were
inspected in 2015 which represented 0.0012 percent of the 383 million arrivals that year." However, the
article went on to suggest that there may have been significantly higher numbers in 2016.
(https://www.nytimes.com/2017/02/14/business/border-enforcement-airport-phones.html?_r=0)
12. What do I do if they detain my device?
If your device is detained, you will be given a receipt for it. Do not leave the airport without first having this
documentation. Further, it is recommended that you copy or take a photo of the serial numbers from each
device that you’ll be traveling with and leave a copy/photo with a colleague or family member at home. This is
also recommended for travelers in general as the serial numbers are helpful if a device is stolen while a
traveler is abroad. Serial numbers help in the identification of the device and tracking in the event that a
device is stolen or lost during detainment.
13. What should I do if a non-US (host country) border agent asks to inspect my device or requests my
password/login credentials?
As often happens in the immigration space, travelers may see reciprocal treatment when they reach the nonUS
destinations. Careful consideration should be given to what the risks are should you chose not to comply.
A follow-up report to the nearest US embassy or consulate is recommended. (If you are not a US citizen,
report the detainment to the embassy or consulate of your nation.)
Source: American Association of University Professors (AAUP)

NOTE:

Quote
Regarding email and social media, some privacy experts contend that the “border search exception” would
not apply to a CBP search of online accounts because the data is hosted at data centers around the world, not
on the device carried through the border. However, this legal issue has not been settled, and as a practical
matter, once CBP gains access to your device, CBP will have access to your signed-in online applications
(Facebook, Twitter, etc.).
Source: American Association of University Professors (AAUP)

Current ACLU lawsuits:
https://www.aclu.org/news/aclu-eff-sue-over-warrantless-phone-and-laptop-searches-us-border
https://techcrunch.com/2018/03/12/aclu-sues-tsa-over-searches-of-electronic-devices/

Quote
The phone displayed the message, “Sorry, this media file doesn’t exist on your internal storage.” This problem did not occur before CBP’s search and seizure of the phone.
https://www.aclu.org/bio/ghassan-and-nadia-alasaad

Quote
When he refused, the agents confiscated his laptop, smartphone, and camera, and told him it could be as long as a year before the government would return them.
https://www.aclu.org/bio/matt-wright

Quote
When Ms. Merchant’s devices were returned to her, the Facebook application on her phone was displaying her friends list. That was not the case when she had given up the phone.
https://www.aclu.org/bio/zainab-merchant

Quote
A few days later, while returning from a day trip to Canada, Mr. Shibly was again detained and told to hand over his phone. When he refused, three agents responded with force. One agent grabbed his neck and began to choke him while another held his arms and legs. The third agent reached into his pants’ pocket and took the phone. Mr. Shibly describes feeling severe pain and fearing for his life. At no point did he physically resist.
https://www.aclu.org/bio/akram-shibly

Quote
They also asked Mr. Kushkush for his social media identifiers and his email address.
https://www.aclu.org/bio/ismail-kushkush

Quote
After three hours, he was directed to a separate area, where he was questioned about his work as a journalist. After having spent a total of three and a half hours in the inspection area, he was released.
https://www.aclu.org/bio/ismail-kushkush

Quote
He continues to feel anxious about the fact that the government copied and retained sensitive materials concerning his journalistic work.
https://www.aclu.org/bio/jeremy-dupin

Quote
When the agent returned, he told Mr. Bikkannavar that they had used “algorithms” to search his phone — indicating they used forensic tools to capture and analyze the private information contained in the device, including emails, texts, and other private information.
https://www.aclu.org/bio/sidd-bikkannavar

Land of the Free? US Has 25 Percent of the World’s Prisoners
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October 08, 2018, 05:48:21 PM
Last edit: October 08, 2018, 06:06:11 PM by paxmao
Merited by xtraelv (1)
 #19

[
You are more likely to get searched for "illegal Apples" than for drugs or have your laptop searched. (NZ doesn't have as much of a problem with imported drugs as the US)

The ministry of primary industries (MPI) will ask you and if necessary search you for fruit and meat products that could bring in foreign diseases. (Yes really - I'm telling the truth) They have fruit sniffing dogs.


I have no-fruit to hide Smiley. That is true in most economic areas, but particularly in "islands" such as New Zealand and Australia. There are quite a few limitations on fresh meat, fish...


Not to mention a ridiculous amount of it´s total population in prison. Roughly 1%, that is more than 2 million people. Not to mention another staggering 4 million in probation.

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October 08, 2018, 06:05:32 PM
 #20

]I would disagree with this, provided however that you independently encrypt the data you have on a cloud service, and keep the decryption keys exclusively stored locally. This is especially true in the context of border crossings. In general, you are going to be subject to having electronic devices searched at every border crossing throughout the world, and as the OP points out, in some cases you may be compelled to give up passwords and decryption keys to files stored locally. However, in general (as is the case in the US), your cloud data is not subject to search when you cross boarders.

Congress Passes CLOUD Act Governing Cross-Border Law Enforcement Access to Data
That law gives law enforcement access to information stored in the Cloud that is stored overseas upon possession of a search warrant. This basically means you cannot hide private information overseas in the cloud. However, importantly, this law (nor any other law that I am aware of) allows a cloud account to be searched when its owner crosses a border.

If there is probable cause, and law enforcement is able to obtain a warrant for data, the fact the data is in the cloud is not going to affect law enforcement's ability to obtain said information.
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