Customs and Border Patrol agents are still randomly confiscating laptops — is yours next?

by Ned Levi on August 31, 2009

Last summer I wrote about the Customs and Border Patrol’s (CBP) program to randomly search and seize laptops, digital cameras, cellphones and other electronic devices at the border, without warrants, reasonable suspicion or probable cause.

A year later, CBP agents are still searching and confiscating laptops; no warrants, no reasonable suspicion, no probable cause.

If you don’t think that’s a problem, ask …

• Nabila Mango, a therapist, who apparently had data from her cellphone erased by CBP while they searched it.
Bill Hogan, a freelance journalist, who had his laptop confiscated for about two weeks.
Maria Udy, a marketing executive, who after more than two years, is still waiting for her laptop to be returned.

In June, the ACLU made a Freedom Of Information Act (FOIA) request for the CBP’s records about the  program. As reported by Consumer Traveler, since CBP has ignored the request, the ACLU filed suit on August 26th, to compel the Department of Homeland Security to produce the records. There seems to be confusion about the suit. It seeks to enforce the ACLU’s FOIA request, not end CBP’s random search and seizure program. I believe the ACLU wants the CBP records to prepare for a future suit to end the program.

Representative Loretta Sanchez (D-CA) introduced H.R.1726 – Border Security Search Accountability Act of 2009. Recently out of subcommittee, the bill would direct the Secretary of Homeland Security to issue rules regarding the scope and procedures for border searches of electronic devices, and provide training for CBP agents. It does not seek to end the search and seizure program.

It appears that Department of Homeland Security (DHS) Secretary Janet Napolitano has essentially preempted Representative Sanchez’s bill by announcing new directives for the CBP program. According to Secretary Napolitano, “Between Oct. 1, 2008, and Aug. 11, 2009…approximately 1,000 laptop searches were performed in these instances—of those, just 46 were in-depth.” The directives do not require DHS agents have reasonable suspicion or probable cause to search or seize a traveler’s electronic gear at the border.

At this point, case law seems to be on the side of DHS. As recently as 2008, the US Court of Appeals for the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices, at the border. Despite an Electronic Frontier Foundation amicus brief in the case, arguing that “laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion,” there has been no further action in the case.

Last year, there was an attempt to end the program. Senator Russ Feingold proposed the Travelers’ Privacy Protection Act of 2008, which would have required agents to have reasonable suspicion of wrongdoing before they could search or seize any citizen’s laptop or other electronic device. The bill died in committee.

This year, H.R.239 – Securing our Borders and our Data Act of 2009, was introduced by Representative Eliot Engel (D-NY). The bill while similar to Senator Feingold’s, is not as comprehensive or strong, but would seemingly prohibit the search and seizure of electronic devices without reasonable suspicion of unlawful conduct. Unfortunately, the chance of this bill, now in subcommittee, becoming law, looks dismal. Since being introduced in January, it has only two co-sponsors.

You might ask, “As a traveler, what can I do?” You can join me and contact your US Senators, and your US House Representative, to tell them:

You want Congress to pass a law requiring DHS agents have, at the very least, a reasonable suspicion of unlawful conduct before they conduct a border search, and/or seizure of US Citizens’ electronic devices, and
• You want DHS agents to be required by law to protect seized devices and data, to ensure their security and US Citizen privacy, and promptly return them after DHS has had a reasonable period of time to complete their search.

While you’re waiting for the House and the Senate to act, it’s up to you, to protect your own electronic device and data security and privacy.

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

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

If you don’t want to accomplish your computing remotely, at least consider deleting everything possible (history, cookies, email, data files, etc.)  from your laptop before reentering the US.

(Photo: Dell, Inc.)

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  • http://www.ffocus.org Bruce InCharlotte

    (I’m not a lawyer, so your mileage may vary.) Sadly, you’re not in the United States when you are passing through Customs. This means that you have no miranda rights, no counsel, no Fourth Amendment rights, etc. and it’s why Customs is allowed to search your person and documents and suitcases without probable cause or even reasonable suspicion. They just can if they want to. It’s not much of a stretch from looking through your suitcase to looking through your laptop.

    Which is not to say that I agree. I have confidential client information on my laptop as well as copies of other information that shouldn’t be in the public domain. What guarantees do we have that CBP protects this information? How do we know where it goes or who reads it?

    Don’t think that password protecting your computer is sufficient because the CBP can compel you to provide the password. If you don’t, then you’re not allowed to enter the United States. How’s that for not having any rights. And this is for US CITIZENS!

    Your suggestion of making your laptop a “dumb terminal” is a good one. Consider also http://www.logmein.com, which has a “free” version that works well.

  • SirWired

    I’ve pointed this out in previous articles, and I’ll do it here again… searches at the border have ALWAYS been done at a far different standard to searches done within the U.S. As in, the 1st Congress, who could be assumed to know what the Bill of Rights meant, explicitly passed a law authorizing complete searches at the border (no warrant or other standard required.) Border searches have never required any standard other than the border agent’s whim or a random check. If more strict standards were required, the control of smuggling would be a virtual impossibility.

    There are indeed problems with how the searches are currently being done, but the constitutionality of the searches is not up for serious question, which is why the EFF’s amicus went nowhere.

    If you are worried about private or confidential data being disclosed during the search, don’t put it on your laptop, just as you would not carry it across the border in a manila folder.

  • Lyngengr

    The entire premise of confiscating and searching personal electronics carried into the United States is ludicrous at best and displays an incredible lack of technological savvy by the CBP. Just as Ned writes, it is not necessary to have anything incriminating or private on a notebook computer as the information can be stored on a server and accessed remotely. Does the CBP think that terrorists or other people with a criminal agenda are just plain stupid? I agree with the ACLU lawsuit – let’s see what CBP is finding on the confiscated computers – I’m willing to bet not a whole lot of anything interesting, unless they like vacation photos.

  • http://nodebtworldtravel.com brian

    Absolutely ridiculous. Confiscate for what? As people depend on their netbooks and laptops of their livelihoods, I can’t understand how you can take for months at a time without probable cause.

    Why should you have to delete cookies and browsing history off of your own property just to ensure hassle free entry your own country? Absurd!

  • Robert

    Brian writes – “Confiscate for what?”

    Pirated software for one. One thing that I would be VERY upset about if they took my laptop with itunes is that I could be in jeopardy of losing my music library. Bootleg music and movies are other digital itiems they might look for. Porn is one more. There can be all kinds of digital documents they might look for involving theft of everything from corporate secrets to national security secrets.

    Unfornately, this is the world we live in today. Ned gives good advice. There is one other reason to follow Ned’s advice. More people lose laptops and and other digital devices more that they get confiscated, so don’t carry anything digitally overseas if you would be upset if you lost it.

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

    Hi Robert,

    It is possible that they would notice pirated software, movies, or music files, but other than looking for financial records of criminal activity, or email records of criminal or terrorism activity, frankly, I’ve been told more than anything else, they are looking for child porn. The have found a handful of people coming in with kiddie porn on laptops, that people were stupid enough to have stored on the computers’ hard drive.

    When it comes down to it, Lyngengr is right, terrorists aren’t that stupid. I’ve been told they had tips to intercept the laptops with the kiddie porn, so for them they actually had reasonable suspicion. Of the 46 laptops Napolitano says they confiscated, I’d be willing to bet they found next to nothing on 40 of them, but of course, we’re not going to know that unless the ACLU wins their suit against DHS.

    SirWired correctly points out that what they are doing is within the law, as I indicated in my article. That being said, I’ve been talking to a number of attorneys about this, including a couple who work for the ACLU. They believe that there are serious Constitutional questions about the searches at the border. They argued to me that to selectively say you are on one side of the fence having landed on US soil meaning you’re not actually in the US is nonsense. If you’re on US soil, you’re on US soil, whether or not CBP and Immigration are going to let you go to the other side of the fence.

    They further argue that current law never anticipated computers and smartphones, and that searching and seizing them is like taking DNA or searching body cavities, especially DNA. Apparently CBP cannot compel you to give DNA evidence at the border with no reasonable suspicion and court order.

    They do believe that the best remedy for the situation is for Congress to pass a law specifically requiring reasonable suspicion for all border searches and seizures.

    Thanks to you Robert, and everyone else who took the time to comment. I appreciate you and all my readers.

    Regards,

    Ned

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

    Brian, while I agree that the situation is ridiculous, at this time, based on the Court’s interpretation of the law, and the lack of action taken by Congress to change the law, CBP has the right to seize your laptop without a warrant, without probable cause, or even the lessor standard of reasonable suspicion.

    While it’s “absurd” that you need to take the action I suggest “just to ensure hassle free entry to your own country” you need to take these actions, and even then, since its a random search and seizure program, supposedly designed to keep terrorists guessing, you won’t know until you get to the border what’s going to happen.

    If you want to end the absurdity, then join the fight. Contact your Senators and Representative and tell them you want action NOW to stop this nonsense!

    Regards,

    Ned

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

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