Last month, two Bay Area civil rights groups – Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF) – filed a lawsuit against the Department of Homeland Security (DHS) in U.S. District Court in San Francisco responding to growing complaints from travelers of excessive screenings at ports of entry involving seizure of laptops, cell phones and other electronic devices along with interrogation about personal matters.
Under the Freedom of Information Act (FOIA) the ALC and the EFF had asked the DHS to have its Customs and Border Protection (CBP) agency share what its policies are regarding searching and copying data from electronic devices, as well as its questioning practices of travelers returning to the U.S. from trips abroad. When the DHS failed to respond, the civil rights groups began seeking a remedy in the federal courts.
Over the past year the ALC says they have received more than 20 individuals’ complaints from Northern California alone who said they had been "grilled about their families, religious practices, volunteer activities, political beliefs, or associations" when passing through ports of entry on returning home.
Additionally, travelers have also claimed that CBP staffers inspected and sometimes copied the contents of their laptops and cell phones without providing any reason for doing so. Customs agents have also examined books, business cards, handwritten notes and personal photos – sometimes making copies of this information. When individuals inquired as to the reason, they were told by CBO agents: "This is the border and you have no rights."
Amir Khan, an IT consultant from Fremont, California and a U.S. citizen, has been stopped and interrogated each time he returns home. In addition to more than 20 hours of grilling, Customs agents have searched his laptop computer, books, personal notebooks, and cell phone. Despite numerous attempts to seek the reason for his interrogation, Khan has yet to receive an explanation on why he is repeatedly singled out.
"One customs officer even told me that no matter what I do, nothing would improve," said Khan. "Why do I have to part with my civil liberties each time I return home?"
The ALC and EFF want to learn what the DHS and CBP screening policies are so they can assess whether any legal or legislative actions are indicated in an effort to force them to change their procedures.
Shirin Sinnar, an ALC staff attorney, said that in all the cases of electronic devices being inspected of which the ALC is aware of, the searches appear to have been done with little obvious cause and very little explanation from the CBP. "In one case, an individual told us his computer was taken for about 45 minutes," Sinnar said. "They told him that was how long it took to download the files from his computer."
The Freedom of Information Act requests by ALC and EFF aren't the first attempts at requesting the DHS disclose its guidelines concerning border searches. The Association of Corporate Travel Executives (ACTE) filed a similar FOIA request with the DHS last July, specifically looking for information about the government's policies on searching laptops and other electronic devices. The DHS did respond to their request – but the ACTE said the document it received was so heavily redacted that it proved useless in providing any meaningful information.
There are a few apparent contradictory legal precedents that have dealt with the issue of searching electronic devices by the CBP. In 2005, Michael Arnold had his laptop searched by CBP officials in the Los Angeles airport. The search led to Arnold's indictment on child pornography charges after the agents allegedly found illegal images on his computer.
However, a federal judge later approved a motion by Arnold to suppress the evidence based on Fourth Amendment rights. The government appealed the ruling; but a U.S. Court of Appeals panel agreed with the judge and held that CBP agents, at a minimum, need to have a reasonable suspicion for conducting such searches.
In the Arnold case, the ACTE and the EFF jointly filed an amicus curiae (friend of the court) brief asking the Court of Appeals to affirm the district court judge's ruling. They argued that searches of computers and electronic devices with no reasonable cause at the border "render meaningless the Fourth Amendment's prohibition against unreasonable searches and seizures."
They also observed that by the government appealing the decision, it was essentially "seeking blanket authority to read, seize, and store" all of the information that could be retrieved from travelers’ electronic devices when they entered to the U.S.
But in a similar 2006 case involving child pornography images that were discovered during a laptop search by officials at the Seattle airport, the Court of Appeals in San Francisco upheld the conviction of Stuart Romm. In that case, the court ruled that the search of Romm's computer was indeed permissible and did not require either probable cause or a warrant.
However, the Court of Appeals noted that Romm had been sent to Seattle after having been first denied entry into Canada. Romm, who had previously pleaded nolo contendere to two child pornography charges previously in Florida and so had generated a federal legal paper-trail, was stopped for questioning at an airport in British Columbia by a border patrol agent who "briefly examined" his laptop and found several child porn websites.
These instances of warrantless searches and seizures involves not only US citizens, as demonstrated by the intriguing case of a Canadian citizen whose laptop was seized at a port of entry when border agents saw evidence that it also had child pornography on it. However, the CBP has been unable to access the suspect files because they are PGP encrypted. A grand jury subpoena to force the accused to reveal the encryption keys was blocked by a judge because it would violate the Fifth Amendment right not to incriminate oneself.
The ACL and the EFF lawsuit states that many citizens have reported that "CBP officials have subjected them to lengthy and intrusive questioning upon their return to the United States. Individuals who protest such questioning or searches have been told that they have no choice but to cooperate as they are at an international border."
When Nabila Mango, an American citizen and San Francisco therapist, returned from a trip to the Middle East in December, customs agents at San Francisco International Airport asked her to name every person she had met and every place she had slept during her travels, according to a joint news release by the two civil rights groups.
"In my 40 years in this country, I have never felt as vulnerable as I did during that interrogation," Mango said. "I want to find out whether my government is keeping files on me and other Americans based on our associations and ideas."
Marcia Hofmann, an EFF attorney, said: "US residents have a right to know the government's standards for border searches." Mr. Sinnar added, "When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation's doorstep. The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process."
Compounding the civil liberties concerns is the fact that in a recent survey of travel industry directors responsible for the international travel of companies in 52 countries conducted by the ACTE, 62 percent of respondents were unaware that computers, cell phones and all other electronic devices can be examined and searched – without a warrant, provocation, explanation or even likely cause – when crossing a US border.
In the same survey, 81 percent of respondents were not only unaware that these devices which were seized could be held indefinitely, but also their contents can be downloaded and made available to any number of other federal agencies.
Yet the ACTE, which tracks complaints from over 2,500 member businesses and their employees who have had laptops seized and the contents copied, said that not one of the travelers in this category was ever charged with a crime.
Because of such a chilling negative impact this could have on businesses, the ACTE is interested in getting the procedure changed in which border officials would have to have probable cause to seize a computer, or even search its contents. The association filed an amicus brief last June stating a laptop constitutes an extension of a person’s thoughts and personal expression, and should therefore be regarded differently than a piece of luggage.
According to Executive Director of the ACTE, Susan Gurley, international travelers need to be prepared for such border searches – particularly because the DHS, despite numerous FOIA requests, has failed to share what its policies are relating to this practice and what it does with the information collected during searches of electronic devices.
"This is by far not an epidemic of any sort," Gurley said. "But we think people should know that they basically are leaving their right to privacy at the door when they cross the U.S. border. There is no assumption of privacy," at a port of entry.
So what to do until the DHS provides more policy information? Some companies provide laptops to their employees with the barest amount of information that they’d be willing to "lose". Others suggest transferring all data from their electronic devices to an internet archive site prior to re-entry so you travel with a minimum of stored information. More controversial is whether one should refuse to provide passwords to authorities to open files, as doing so might be construed as waiving your rights to require the government obtain a warrant.
Ms. Gurley feels there are five major points that all Road Warriors who cross international borders should be aware of:
1. No evidence is required to seize your laptop
Border agents do not need any evidence or suspicion of illegal activity to examine a laptop or any other electronic device. Every time you cross the border, customs officials have the right to look at anything in your possession, including the content on your laptop, handheld device, cell phone, USB memory stick and digital cameras. They not only have the right to view that information, but also to download or mirror it if they so choose.
2. Anything can be searched
Everything on an electronic device is open to search. If it’s on your computer, it’s available to the viewing eyes of any agent. And it’s up to them if they want to download any data, store it and share it with other agencies.
3. Your PC might not be returned right away
Seized devices may be kept for an indefinite period of time. Carry only a laptop or electronic device you can afford to hand over to the government for an unspecified period of time. Sensitive data should be sent back before crossing the border in case the data becomes unavailable if the device is seized, she said.
4. Don't take anything you don't want to share
Don't store anything on these devices that could potentially embarrass you or your company – or that you don't want others to see. If it's information you don't want to share, don't carry it. That includes personal financial data, photos, correspondence, health records, contacts and password information. And if the device is a company-owned computer, don't carry proprietary business information or records on it that you’re not willing to give to the government.
5. Be cooperative
Cooperate with customs officials. But also ask for a receipt and a badge number if your computer is seized. And try to get whatever information you can on the reason why it was seized.
Bon voyage!
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http://weblog.infoworld.com/...
http://www.acte.org/...
http://www.eff.org/...
http://www.pcworld.com/...
http://www.computerworld.com.au/...