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 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.)