ACLU, NPPA, slam CBP random data searches — big brother reaches into your computers, smartphones and PDA

by Ned Levi on September 13, 2010

What do Pascal Abidor, a graduate student and U.S.-French citizen, Bill Hogan, a freelance journalist and US citizen, and Maria Udy, a marketing executive and a UK citizen living and working in the Washington, DC area, have in common?

Have you seen them in the news?

They’re international travelers, who, while on US soil at the border, were detained, and had their laptop computers confiscated by US Customs and Border Protection (CBP) agents, without any apparent reasonable suspicion, or probable cause to search and seize their laptops.

They were caught in CBP’s “random inspection of electronic media.”

Mr. Abidor, didn’t have his laptop and external drive returned for several weeks. When they were returned, an examination of the devices showed his personal files, including letters between him and his girlfriend, photographs, and confidential information from interviews he had conducted as part of his thesis had all been copied and examined by CBP. The government has never accused Mr. Abidor of any wrongdoing.

Bill Hogan was luckier. He got his laptop back two weeks after it was seized, but Hogan was still understandably upset.

Ms. Udy wasn’t so lucky. Like Mr. Abidor and Mr. Hogan, she’s never been accused of wrong doing, but after more than two years, her computer hasn’t been returned, and she’s been unable to find out why.

I’ve been writing about this problem since 2008. Nothing at CBP has changed. No international traveler at the U.S. border, leaving or arriving, is safe from having their electronic devices (cell phones, MP3 players, digital cameras, memory devices, laptops) randomly confiscated without warrant or court order, by CBP, and without reasonable suspicion of wrong doing, or probable cause.

In the 21st century, many people keep a record of the most intimate details of their lives on their laptops, PDAs and cell phones. Some laptops have become de-facto electronic diaries. You can’t get more personal than that.

The preamble to the U.S. Constitution speaks about securing “the blessings of liberty to ourselves and our posterity.” CBP is indeed on the front lines working to secure our liberty. I’d just like to see them do that within the boundaries set forth in our Constitution and its amendments.

The parallels in the U.S. between today and the time leading to the American Revolution are intriguing. Ben Franklin understood the dilemma when he said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

CBP can’t secure our general liberty by taking essential liberties away from us, which in this writer’s opinion, they have done.

This past June, the American Civil Liberties Union (ACLU), under the Freedom of Information Act, requested detailed statistics, and information about the government’s policy of searching travelers’ laptops and other electronic devices at US border crossings without suspicion of wrongdoing.

What the ACLU found is that Mr. Abidor, Mr. Hogan, and Ms. Udy weren’t isolated cases. From October, 2008 through June 2010, more than 6,600 people, nearly half, U.S. citizens, traveling to or from the US, had their electronic devices searched, many of them seized, at the border.

Armed with that information, the ACLU filed suit last week, to declare CBP’s policies of electronics’ search and seizure, when they have no reason to believe a search would reveal wrongdoing, unconstitutional.

The ACLU asserts,

“The Fourth and First Amendments do not permit the government to rummage through a person’s laptop, cell phone or other electronic devices, or to detain these devices indefinitely without any suspicion just because a person is crossing the border.”

Long time legal precedents may or may not be on their side.

In United States v. Arnold the U.S. Court of Appeals for the Ninth Circuit, in 2008 stated, “Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” This decision follows the border search exception, first officially recognized by the Supreme Court in 1977.

In Arnold, the court did recognize that there could be limits on the government’s power, if it sacrificed a person’s dignity “without, at the bare minimum, some form of basic justification.”

The Electronic Frontier Foundation said this about Arnold,

“The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.”

While Arnold seemingly slammed the door shut on appealing laptop search and seizure policy, it did open the door for the ACLU case. The ACLU must convince the court that searching electronic devices is at its essence, the equivalent of a “body cavity” search, which requires at the least some reasonable suspicion. Clearly, the ACLU asserts that, that personal electronic equipment hold a person’s most important, valuable and often intimate personal records.

The National Press Photographers Association*, (NPPA) believes allowing “government officials unfettered ability to search journalists’ laptops and other electronic devices at the border has a chilling effect” on journalists’ ability to gather and disseminate news and raises additional First Amendment issues in the ACLU case they’ve joined.

If you are an international traveler, even if the only electronic device your carrying across the U.S. border is a smartphone, keep abreast of this case, because its outcome can very much affect your life.

The next time you travel internationally, your cell phone, MP3 player, camera or laptop may be searched and confiscated for an indeterminate period by CBP.

Security expert Bruce Schneier says your best defense is to clean your laptop. “A customs agent can’t read what you don’t have.” I agree.

I use the GoToMyPC.com service. While traveling, I connect to my office computer back in the US, using my laptop as a dumb terminal, with all my browsing, email, and word processing actually done back in the US. Everything is on the office computer, nothing on the laptop. I can’t loose what not there. Other than the photographs taken while traveling, I store nothing on my laptop.

If you don’t want to either connect to your computer remotely, or use cloud computing to store your information, at least consider deleting everything possible (history, cookies, email, data files, etc.) from your laptop before reentering the U.S.

* Ned Levi is a member in good standing of the National Press Photographers Association.

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  • Karla Katz

    This writing is probably the best compilation and analysis of what’s happening, it is certainly worthy of sharing with everyone!

  • John Baker

    Ned … an expansion on the “thin” client idea is to use a mobile device instead of a laptop to connect back to your PC. Personally, I use an iPad and can connect back to my office PC (or for that matter any PC/Server on our network) and handle all of my business through it (you could also use an iPhone or iPod to do the same thing. I’m not sure about Andriod clients).

    Its also an effective way to go to the Flash websites that Steve Jobs loves to hate. I can also can get on websites that aren’t available in Europe (like TV shows etc.) while overseas. Uncle Sam wants to take my iPad on the way home. There’s little they can look at.

  • http://www.tripso.com/author/ned/ Ned Levi

    Hi John,

    Thanks for your comment. The iPad can certainly connect to one’s computer at home or the office remotely through the Internet, have access to run applications on the remote computer, etc. In my opinion, at this time, there are two applications available for the iPad which are robust enough to trust their connection has enough security to make it safe; VNC viewer, and iSSH.

    That being said, I don’t personally find the iPad platform particularly usable for a significant workload while traveling. For periodic email checking it’s fine, but for significant work in preparing and editing reports, writing columns and articles for publication, graphics editing, photographic editing, all things I do while traveling, the iPad is not ready for prime time. It is a wonderful indoor entertainment tool, however, even there I personally find it wanting. While I don’t find the iPad an able Internet device to do my work while traveling, I can understand that others may find it satisfactory.

    There are a myriad of devices available for people. Each one of us has to choose what’s best for us, and only each of us holds the particular answer of what is best for ourselves. Very briefly, I find the screen while beautiful inside, it is unusable outside or in bright light, the iPad keyboard significantly insufficient for more than cursory use, and I find the use of fingers and finger gestures, less than satisfactory for running a cursor easily, quickly and accurately on a remote computer. (Don’t think I don’t like Apple products. I use an iPhone, iPod, and a Macbook Air (short travels for the Air, only, a more substantial laptop for longer trips). Moreover the screen size of smartphones precludes them, in my opinion, from being viable devices for satisfactorily running a computer remotely to do just about anything significant.

    This is a great topic for a future column so I’ll leave it for that.

    As a columnist, it’s my job to raise issues, express my opinion and explain why, then let each person determine their own opinion based on solid knowledge, which may or may not agree with mine. The important thing is that their opinion will be an informed opinion, based on facts, not hearsay. While I am, of course, always right (LOL), there is room in this world for multiple opinions.

    So getting back to the main issue of the column, while it’s important to know what to do today about the CBP search and seizure program, to not lose or compromise valuable, confidential or intimate data, which is why I included that information, it’s more important for we, as Americans, to push and prod our government to respect its citizens, and use their power wisely, within the scope of the Constitution, so our rights as citizens, defined by that document and its amendments, are preserved.

    Treating our laptops, digital cameras, cellphones, and other personal electronic devices which hold personal information of a confidential, or intimate nature about ourselves and others, and which hold confidential and trade-secret information for businesses, and which hold confidential information ascertained by members of the 4th estate, as if they are simply luggage, is a gross misinterpretation of the law born out of terrorist hysteria, not reasonable analysis or common sense, in my opinion.

    As I have done in the past, I urge you to contact your Congressman and Senators, and the President of the United States to correct this wrong forthwith.

  • http://www.tripso.com/author/ned/ Ned Levi

    Thank you very much Karla for those kind words. I certainly hope our readers here at CT will share the information about this highly troubling, and in my opinion, unconstitutional program of CBP.

  • Nigel Appleby

    After your earlier column(s) about this situation, I obtained a netbook for travelling. I have very little installed in it. Vista as an operating system, Microsoft Word so I can write a journal. I use hotmail for one email account, the other I set to forward to gmail.. I did have some e-books but now I have a Kindle I won’t bother. In the future I will be using GotomyPC as you suggest. Plus before each journey I copy everything to 2 thumbdirives – one goes in my pocket the other in my checked baggage. Hopefully I won’t lose or have confiscated all 3; could be wishful thinking

  • Hapgood

    So what “success” does CBP claim to be getting from this fishing expedition, beyond (presumably) quota fulfillment statistics reported on classified PowerPoint charts?

    At least the TSA periodically crows about the drugs, false identity documents, and fake military jackets their officers find. None of that has anything to do with terrorism, of course, but at least they can claim something tangible that perhaps justifies all the money they spend and the hassles they inflict (assuming you aren’t bothered by airport security screening becoming a general criminal dragnet).

    Given all the publicity and lawsuits, I’m surprised CBP isn’t waging a propaganda campaign to justify their program, informing us of all the terrorist plots, child pornography, and copyright infringement from which “random inspection of electronic media” has protected the Homeland. The lack of any such triumphant press releases can only suggest that this is yet another example of the War on Terror giving an unaccountable bureaucracy license to trample people’s rights for no reason other than “because we can.”

  • Puzzled

    Ned, thank you for raising this vital issue again. It’s important to keep it in front of the public.

    CPB’s actions over the years have certainly had a chilling effect on my decision as to which devices I’ll carry when traveling. I’d love to have my iPod, for example, on long overseas flights but am loathe to risk the loss of an item with great sentimental value which carries all my favorite music, podcasts, etc.

    I have to wonder if CBP’s policies will be extended to Kindles (and other electronic readers) and, if so, if that will be enough to create some critical mass on this issue. (I realize that Kindles, etc., are intrinsically different from PDAs, iPods, etc., but rather doubt that would stop the CBP from treating them the same.)

  • http://www.tripso.com/author/ned/ Ned Levi

    Hi Nigel,

    Thanks for being one of our readers and commenters. We appreciate the feedback.

    Since you’re using gmail, I have a suggestion. Consider using Google Docs while you’re traveling. For example, I have protected pdf copies of my family’s passports, visas, and other travel documents there when we travel. (I remove them when we return.) That way they’re always available while traveling as long as I can get on the Internet. If I lost my Passport, or if it was stolen, even if other documents were also stolen, at the Embassy, while traveling internationally, I could have the embassy pull up the documents for any proof they would need.

    While out of the country, the only “data” on my laptop are the photographs I’ve taken while traveling, which normally number in the thousands per week of travel. They are also on a portable external hard drive. I also upload the obvious keepers to the office computer, but sending them all just isn’t an option considering upload speeds at hotels and ships and the sheer volume of photos I take.

    My columns, articles, business documents, notes, personal documents, email, etc. are all solely on the office computer. The only history in my browser is generally two locations; gotomypc.com and mlb.com. If there is something special I feel I absolutely need to have with me, it’s on Google Docs (encrypted or at least password protected), plus the office computer. I don’t take data on my laptop or on USB drives etc. I just don’t trust what might happen at the border, either leaving or returning home.

    I have personally never had trouble with CBP, but at this point I have heard the stories of too many people who have had trouble, serious trouble. The odds are definitely with you to not have trouble, yet I’m unwilling to take a chance and divulge intimate details of my life, or chance losing documents I need for my livelihood, or not having them available to me in a timely fashion that they won’t loose their value.

    Don’t forget, if CBP decides to inspect and interview you, it’s not just your carry-on, it’s your checked luggage too. Nothing’s out of bounds as far as they are concerned.

    (Don’t forget cell phone data. I have mine set up to easily delete all data if necessary.)

  • http://www.tripso.com/author/ned/ Ned Levi

    Hi Puzzled,

    Thanks for your readership and comment.

    I’d say, enjoy your trip and take your iPod.

    My iPod goes on every trip I take, whether domestic or international. It’s my main entertainment device. I even have external speakers for it, for in the hotel room. I also have a MYVU visor to view the TV shows and feature length movies I’ve stored on it, and noise cancelling headphones to listen to its content while flying. I put a 240GB hard drive in mine, so I have more than 60 feature length films, and more than 100 TV episodes, plus lots and lots of music on mine. They’re all on iTunes, so if CBP keeps the iPod (normally you’ll get it back on the spot, but if not, within a few weeks) you can buy another. I wonder if homeowners insurance covers theft by CBP? (LOL)

    As to the Kindle, it’s on their list. After all, you can load personal documents on your Kindle.

  • John Baker

    Ned … Since no one else has done it, here’s the counter-argument to yours (I thought about a counter-post but why not keep the debate here?).

    By opting to cross a border one consents to an inspection and search. This is the method in which the US keeps material it deems threatening or harmful outside of the US. It is also why it is perfectly legal for CBP to randomly stop people at the border for luggage searches even though they don’t have probable cause to believe you’ve done anything wrong. The chance for the search keeps honest people honest and may find those attempting to smuggle in items that aren’t allowed across the border. If you travel as much as I have, I’m sure you’ve seen people with food items that are being confiscated and illegal items seized.

    Thirty years ago and prior to the advent mobile computing, it was easy to do a cursory search of the documents and photos that one might be carrying in an attempt to find documents or photos that would be illegal to possess within the US. Since the advent of mobile computing, anyone crossing the border with a laptop could carry the equivalent of a warehouse full of documents and photos. The same drive could contain programs of a malicious nature.

    Ultimately, CBP has the job of keeping those items which Congress through law making and the executive branch through rule making have deemed dangerous outside the US. The current policy is in place to give the CBP a reasonable means of searching electronic items crossing the border and is no different than physically searching a suitcase. Would you prefer to be detained until they have completed their search or have them seize the item to be searched and return it at a later date?

    Having said that, I don’t believe that CBP should have the ability to withhold personal property that wasn’t involved in a crime, like smuggling or the transportation of illegal goods, indefinitely.

    I attempted to come up with a compromise solution that would keep allow someone to maintain possession of their property and allow CBP to conduct their reasonable search. Unfortunately, I have been unable to come up with a solution that keeps “harmful” electronic information from entering our borders and allow someone to possess the item. Even completely copying the hard drive of a laptop for later inspection and then returning it to the owner immediately would then allow that “harmful” information into the US.

    Ultimately, I believe that CBP should have a reasonable time limit on how long they should have to inspect an electronic item. After that period is up, they would either need to provide probable cause for extending the search, return the item to the owner or seize the item as evidence of a crime. During that time period, the property should be tracked just like evidence, because ultimately it could be, and property owners should have the right to know the disposition of their “case” and property.

  • http://www.tripso.com/author/ned/ Ned Levi

    John, thanks for your thoughtful comment. Dialog like this helps each of us understand the issues, sharpens our focus, is informative, and even if in the end, we decide to agree to disagree, at least the issues will get a fair hearing, so each person can make up their own mind what their point of view should be.

    John, from what I’ve learned about the 4th Amendment and border searches, by opting to cross the US border one does not automatically consent to warrantless inspection and search and possible seizure of private property. There is nothing in US Federal law, no part of the Constitution which says by the mere act of attempting are actually crossing the US border, you are in essence giving the Federal government the right to carte blanch inspect your personal belongings without them securing court permission.

    The Fourth Amendment provides in part that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” Therefore, typically, searches must be backed by a valid warrant describing the particulars of the places and items to be searched. That being said, the courts, over the years, in the interest of national security, have long stood by an exception to this general protection allowing customs officers to perform warrantless, routine searches of those seeking entry or departure at US borders. Airports, in the case of international travel, are considered the legal equivalent of national borders.

    So, travelers have not given their assignation to being searched, the US courts have stated. through rulings, that the Federal Government, may perform warrantless searches as a matter of law at the border. But historically there have been limits, which is what the ACLU, et. al. are banking on in their appeal of CBP’s randon inspection program.

    Routine searches of people and their luggage at the border do not require any sort of reasonable suspicion or probable cause justification, however, the Court has ruled that more invasive, non-routine searches (including body cavity searches), require reasonable suspicion of illegal activity to perform the searches. Moreover, the searches are allowed to be broad in scope, but they are still subject to the reasonableness limitation of the Fourth Amendment. The Supreme Court determined that searching inside sealed containers within luggage and on one’s person are within the scope of the Fourth Amendment.

    It is true, as you said, that more than 30 years ago it was easy to do a cursory search of the documents and photos that one might be carrying in an attempt to find documents or photos that would be illegal to possess within the US. And it’s true that since the advent of mobile computing, anyone crossing the border with a laptop could carry the equivalent of a warehouse full of documents and photos, and that the drive could contain programs [and data] of a malicious nature.

    That being said, the data can also be non-malicious, and contain confidential, private, intimate information which is no one’s business except the person’s with the laptop. I have no doubt whatsoever that by searching and especially seizing a laptop or other electronic device, even for a short time, confidences can be breached and done irreparable harm, trade secrets lost, whistle-blower information received by the wrong hands, deadlines missed meaning loss of employment and or income, and owners mentally raped (yes a strong statement to be sure, but true, nevertheless, in my opinion).

    I fully support CBP in their search of ordinary belongings, but draw the line at laptops and similar devices, unless there is reasonable suspicion of wrongdoing. (It’s interesting to note, that CBP has no public record of having uncovered anything from these warrantless searches or seizures of laptops of any note. While it’s possible they are keeping all their successes confidential for long term security sake, I think it’s more likely they would loudly trumpet at least a few successes considering the heat they are feeling from some powerful members of Congress and various lawsuits to eliminate the random search program.)

    Before concluding, I would ask, what would a reasonable time be to deprive a reporter of their confidentially obtained information so they can write their story exposing government corruption, or some criminal activity in the private sector, or some military breach? What would be a reasonable time be to deprive an attorney of work materials and evidence collected when abroad for a case being tried, where any delay could jeopardize their client, and any release of the information could taint or even destroy their case? What would be a reasonable time be to deprive a photo journalist like me my photos preventing the sale of time sensitive work product, and depriving me of my livelihood. What would be reasonable time to hold on to and read a teenager’s personal diary and exposing it to potential leakage – before or after depression sets in and possible suicide. These are a reasonable consequences to expect of giving CBP unfettered power which they shouldn’t have.

    I personally think the solution is clear. Require a warrant or require reasonable suspicion of wrong doing which can be specified and documented for a later court hearing.

    A side-note please. Cloud computing is well known these days to criminals and terrorists. Heck the terrorists know how to avoid our satellite surveillance, so don’t you think they’ll know how to avoid having criminal or terrorist info on their electronic devices? Plus I sincerely doubt that randomly searching less than 7,000 electronic devices compared to the hundreds of thousands which cross our border every 21 months will uncover serious criminal activity, more or less terrorist activity, but it can severely damage the innocent traveler who thinks they have nothing to fear from their government.

  • Puzzled

    Ned, thanks for your comments. However, since my iPod was an anniversary gift, I don’t want to risk losing it to CBP. Perhaps I should have another for travel only…

    And you’re right – the best solution is that a warrant or reasonable suspicion should be required before confiscating electronic devices. I hope you’ll continue raising the issue

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