Agents can randomly seize travelers' laptops or PDAs
By Jim Puzzanghera
June 29, 2008

WASHINGTON - Bill Hogan was returning home from Germany in February when a customs agent at Washington Dulles International Airport pulled him aside. He could re-enter the country, she told him. But his laptop could not.

U.S. Customs and Border Protection agents said he had been chosen for "random inspection of electronic media," and kept his computer for about two weeks, recalled Hogan, 55, a freelance journalist from Falls Church, Va.

Though it was a spare computer that had little important information, Hogan felt violated.

"It's not an inspection. It's a seizure," he said. "What do they do with it? I assume they just copy everything."

For several years, U.S. officials have been searching and seizing laptops, digital cameras, cell phones and other electronic devices at the border with few publicly released details. Complaints from travelers and privacy advocates have spurred some lawmakers to question the U.S. Customs and Border Protection policy.

As people store more and more information electronically, the debate hinges on whether searching a laptop is the equivalent of looking in your luggage, or more like a strip search...(Click Read More at post footer to read whole article)

"Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicion-less searches of Americans' laptops and similar devices go too far," said Sen. Russ Feingold, a Wisconsin Democrat who chairs a subcommittee that examined the searches at a hearing Wednesday. "Congress should not allow this gross violation of privacy."

Authorities need a search warrant to get at a computer in a person's home, and reasonable suspicion of illegal activity to search a laptop in other places. But the rules change at border crossings. Courts have ruled that there's no need for warrants or suspicions when a person is seeking to enter the country - agents can search belongings, including computer gear, for any reason.

The latest was the 9th U.S. Circuit Court of Appeals, which ruled in April that agents acted properly in turning over information used to charge a traveler with possession of child pornography. His laptop had been searched in 2005 at Los Angeles International Airport.

Any routine search is considered "reasonable" under the Fourth Amendment, legal scholars agree. But Feingold worries that the law has not kept up with technology.

"People keep their lives on these devices: diaries, personal mail, financial records, family photos. ... The government should not be able to read this information," said Lee Tien, senior staff attorney for the Electronic Frontier Foundation. In February, the group and the Asian Law Caucus sued authorities for more information about the program.

The issue is of particular concern for businesses, which risk the loss of proprietary data when executives travel abroad, said Susan K. Gurley, executive director of the Association of Corporate Travel Executives. After the California ruling, the group warned its members to limit the business and personal information they carry on laptops taken out of the country.

Of 100 people who responded to a survey the association did in February, seven said they had been subject to the seizure of a laptop or other electronic device.

Jayson P. Ahern, deputy commissioner of customs and border protection, said in written testimony to the subcommittee that the agency would "protect information that may be discovered during the examination process, as well as private information of a personal nature that is not in violation of any law." The agency conducts "a regular review and purging of information that is no longer relevant," Ahern wrote.

Feingold said the testimony gave "little meaningful detail" about the program. He is considering legislation to prohibit such routine searches of electronic devices without reasonable suspicion.

But Republican Sen. Sam Brownback of Kansas said U.S. officials have to balance individual rights with protecting the nation.

"Terrorists take advantage of this kind of technology," he said.

Hogan, the freelance journalist, said there was no reason for customs agents to think he was a terrorist. He advised people to take precautions with their laptops when they leave the country.

"I certainly would never take it again," he said.

Jim Puzzanghera writes for the Los Angeles Times.

What I don't understand is how people argue that "Terrorists take advantage of this kind of technology". Of course they do, but curtailing basic rights of search and seizure isn't going to stop them. First, the percentage of terrorists coming into the country is very small, a fraction of 1% of all travellers. If you are only sampling 7% of the laptops/PDA's coming into the country your odds of nabbing a terrorist are vanishingly small. Also, it doesn't take a genius to realize that memory technology is such that you can hide copious amounts of data in really small places that would more than likely go unnoticed.

Take for example the Pico Drive C, about as big as a quarter and as heavy as a nickel. It transfers twice as fast as my Cruzer Titanium, has twice the memory, and costs about half as much as I paid for the Titanium a year ago. It is also conveniently waterproof, allowing for lots more moist storage locations than most people care to think about. (Just wash and dry it and your hands thoroughly prior to use. In a pinch Purell would probably do the trick). This could easily be stored nearly anywhere and be so small as to be completely unrecognizable for what it is.

What I think we forget is that terrorists are fairly smart despite their lack of intelligence. These draconian measures against our civil liberties are not going to stop them if they want to create havoc. If I can think these workarounds up with 10 minutes of computer time, think what a determined terrorist mastermind could achieve with a year of research and planning. Rather than get draconian on all of us, lets focus on identifying terrorists and intercepting them rather than casting worthless nets into the water that come back empty nearly every time.