Oh yeah. 9/11 did change everything.
Remember the 90s? It was the dawn of an era of globalization and easy, instantaneous movement of information. The hero of this new age was the "road warrior" who jetted around the globe solving problems, selling Infomation Age products and making deals. And the warrior's chief weapon was the state-of-the-art laptap crammed with all the features and data needed to accomplish the task.
Not any more. The Patriot Act, zealous U. S. Customs and TSA officials and a Federal Ninth Circuit Court of Appeals ruling giving a green light to warrantless searches and seizures has made traveling with a laptop very difficult. And if you carry sensitive data on that laptop these days, you're a fool.
The Baltimore Sun reports that U. S. Customs officials are routinely seizing 5-10% of the laptops brought back into the country by U. S. citizens returning home after international travel. There's no warrant or reasonable suspicion required, just a program to randomly expropriate laptops and keep them for 2 weeks or longer for "random inspection of electronic media." The "program," in effect for the last few years, is also being applied to digital cameras, cell phones and PDAs.
Don't expect the courts to step in and stop the intrusion. In United States v. Arnold, the U. S. Ninth Circuit Court of Appeals ruled that the Constitution afforded no protection against random searches of laptops and other personal electronic equipment when citizens bring it back in to the U. S. Under this ruling, customs agents can seize a laptop, require you to open its files for their inspection, or download all your data onto their computers.
The trial judge in Arnold had ruled in favor of defendant (in a child porn case, of course), noting that our laptops these days carry:
vast amounts of private information, including passwords, financial records, health information, business documents and communication records. "You can’t treat them like other devices," he said.
Not so, said an en banc panel of the Ninth Circuit. Arnold's lawyer, with the support of civil liberties and privacy advocates like the Electronic Freedom Foundation, will seek Supreme Court review.
Senate hearings last week revealed a pattern of overreaching and abuse by federal border officials. Senators Feingold and Leahy urged customs officials to back off. Feingold said the searches and seizures were out of keeping with Americans' understanding of their Constitutional rights:
"If you asked [U.S. residents] whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs, and examine the Web sites they have visited, all without any suspicion of wrongdoing, I think those same Americans would say that the government has absolutely no right to do that," said Feingold, chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights. "And if you asked him whether that actually happens, they would say, 'not in the United States of America.'"
But Sam Brownback said the personal privacy rights had to be balanced against the need to protect the nation from terrorists. Brownback was unenthusiastic, however, about having his own Blackberry searched.
No legislation to change the policy has been introduced.
The Ohm Project has some recommendations about how road warriors in the post-9/11 era can protect themselves and their data in today's "Daily Tip."