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 |  Subject: About time too! Laptop searches at border might get restricted  Wed Dec 10, 2008 7:25 am | |
| WASHINGTON (AP) -- Mohamed Shommo, an engineer
for Cisco Systems Inc., travels overseas several times a year for work,
so he is accustomed to opening his bags for border inspections upon
returning to the U.S. But in recent years, these inspections have gone
much deeper than his luggage.
Border agents
have scrutinized family pictures on Shommo's digital camera, examined
Koranic verses and other audio files on his iPod and even looked up
Google keyword searches he had typed into his company laptop.
"They
literally searched everywhere and every device they could," said
Shommo, who now minimizes what he takes on international trips and
deletes pictures off his camera before returning to the U.S. "I don't
think anyone has a right to look at my private belongings without my
permission. You never know how they will interpret what they find."
Given
all the personal details that people store on digital devices, border
searches of laptops and other gadgets can give law enforcement
officials far more revealing pictures of travelers than suitcase
inspections might yield. That has set off alarms among civil liberties
groups and travelers' advocates - and now among some members of
Congress who hope to impose restrictions on the practice next year.
They
fear the government has crossed a sacred line by rummaging through
electronic contact lists and confidential e-mail messages, trade
secrets and proprietary business files, financial and medical records
and other deeply private information.
These
searches, opponents say, threaten Fourth Amendment safeguards against
unreasonable search and seizure and could chill free expression and
other activities protected by the First Amendment. What's more, they
warn, such searches raise concerns about ethnic and religious profiling
since the targets often are Muslims, including U.S. citizens and
permanent residents.
"I feel like I don't
have any privacy," said Shommo, a native of Sudan who has been in the
U.S. for more than a decade and plans to apply for citizenship next
year. "I don't feel treated equally to everybody else. I feel
discriminated against."
Customs and Border
Protection, part of the Department of Homeland Security, asserts that
it has constitutional authority to conduct routine searches at the
border - without suspicion of wrongdoing - to prevent dangerous people
and property from entering the country. This authority, the government
maintains, applies not only to suitcases and bags, but also to books,
documents and other printed materials - as well as to electronic
devices.
Such searches, the government notes,
have uncovered everything from martyrdom videos and other violent
jihadist materials to child pornography and stolen intellectual
property.
While Homeland Security points out
that these procedures predate the attacks of Sept. 11, 2001, civil
liberties groups have seen an uptick in complaints about border
searches of electronic devices in the past two years, according to
Shirin Sinnar, staff attorney at the Asian Law Caucus. In some cases,
travelers suspected border agents were copying their files after taking
their laptops and cell phones away for anywhere from a few minutes to a
few weeks or longer.
Such inspections appear
to amount to "a fishing expedition" by border agents, said Farhana
Khera, executive director of Muslim Advocates.
These
objections led the Asian Law Caucus and the Electronic Frontier
Foundation to file a Freedom of Information request to obtain the
federal policy on border searches of electronic devices. When the
government failed to respond, the groups filed a lawsuit this year. And
lawmakers began demanding answers.
So in
July, amid the mounting outside pressure, Homeland Security released a
formal policy stating that federal agents can search documents and
electronic devices at the border without suspicion. The procedures also
allow border agents to detain documents and devices for "a reasonable
period of time" to perform a thorough search "on-site or at an off-site
location."
The problem with this policy,
argues Marcia Hofmann, staff attorney with the Electronic Frontier
Foundation, is that the contents of a laptop or other digital device
are fundamentally different than those of a typical suitcase.
As
Sen. Ron Wyden, D-Ore., who is co-sponsoring one of several bills in
Congress that would restrict such searches, put it: "You can't put your
life in a suitcase, but you can put your life on a computer."
Susan
Gurley, executive director of the Association of Corporate Travel
Executives, which filed its own Freedom of Information request to
obtain the government's laptop search policy, noted that border
searches pose a particular concern for international business
travelers. That's because they often carry sensitive corporate
information on their laptops and don't have the option of leaving their
computers at home.
And for many travelers,
the concerns go beyond their own privacy or the privacy of their
employers. Lawyers may have documents subject to attorney-client
privilege. Doctors may be carrying patient records.
Tahir
Anwar is an imam at a mosque in San Jose, Calif., so his laptop and
iPhone contain confidential information about the mosque's members,
including their personal e-mail messages.
Anwar
has traveled abroad 12 times over the past 2 1/2 years and he has been
detained upon returning to the U.S. every time. Border agents have
searched his laptop and once took away his cell phone for 15 minutes.
Now
when Anwar travels, he simply leaves his laptop behind and deletes
e-mail off his iPhone before crossing the border, synching it back up
with his computer after he gets home.
"People
tell me their innermost secrets," Anwar said. "I tell people to e-mail
me, so a lot of personal information is in my e-mail. If people find
out that this information is being looked at, I can't serve my purpose
and people won't come to me."
For its part,
the government argues that some of the most dangerous contraband is
transported in digital form today - making searches of electronic
devices a crucial law enforcement tool.
Among
the successful searches the government cites from recent years: In
2006, a man arriving from the Netherlands at the Minneapolis airport
had digital pictures of high-level Al-Qaida officials, and video clips
of improvised explosive devices being detonated and of the man reading
his will. The man was convicted of visa fraud and removed from the
country.
"To treat digital media at the
international border differently than Customs and Border Protection has
treated documents and other conveyances historically would provide a
great advantage to terrorists and others who seek to do us harm,"
Jayson Ahern, the agency's deputy commissioner, said in a statement
submitted to the Senate Judiciary subcommittee on the Constitution in
June. Homeland Security did not send anyone to testify.
Amy
Kudwa, a spokeswoman for the department, also stressed that a tiny
fraction of 1 percent of all travelers are singled out for laptop
searches at the border. She added that Homeland Security does not
profile based on religion, race, ethnicity or any other criteria in
conducting such searches.
So far, only a handful of court cases have addressed the issue.
Federal
appeals courts in two circuits have upheld warrantless or
"suspicionless" computer searches at the border that turned up images
of child pornography used as evidence in criminal cases.
But
late last year, a U.S. magistrate judge in Vermont ruled that the
government could not force a man to divulge the password to his laptop
after a search at the Canadian border found child pornography. The U.S.
Attorney's Office in Vermont is appealing the decision to the U.S.
district court.
Now Congress is getting involved. A handful of bills have been introduced that could pass next year.
One
measure, sponsored by Sen. Russell Feingold, D-Wis., chairman of the
Constitution subcommittee, would require reasonable suspicion of
illegal activity to search the contents of electronic devices carried
by U.S. citizens and legal residents. It would also require probable
cause and a warrant or court order to detain a device for more than 24
hours.
And it would prohibit profiling of travelers based on race, ethnicity, religion or national origin.
Rep.
Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also
require suspicion to inspect electronic devices. Engel said he is not
trying to impede legitimate searches to protect national security. But,
he said, it is just as important to protect civil liberties.
"It's
outrageous that on a whim, a border agent can just ask you for your
laptop," Engel said. "We can't just throw our constitutional rights out
the window."
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