Laptops at Customs

Maria Udy, a marketing executive with a global travel management firm in Bethesda, said her company laptop was seized by a federal agent as she was flying from Dulles International Airport to London in December 2006. Udy, a British citizen, said the agent told her he had "a security concern" with her. I was basically given the option of handing over my laptop or not getting on that flight, she said.

The seizure of electronics at U.S. borders has prompted protests from travelers who say they now weigh the risk of traveling with sensitive or personal information on their laptops, cameras or cellphones. In some cases, companies have altered their policies to require employees to safeguard corporate secrets by clearing laptop hard drives before international travel.

The Electronic Frontier Foundation and Asian Law Caucus, two civil liberties groups in San Francisco, plan to file a lawsuit to force the government to disclose its policies on border searches, including which rules govern the seizing and copying of the contents of electronic devices. They also want to know the boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment. The question of whether border agents have a right to search electronic devices at all without suspicion of a crime is already under review in the federal courts.

The lawsuit was inspired by two dozen cases, 15 of which involved searches of cellphones, laptops, MP3 players and other electronics. Almost all involved travelers of Muslim, Middle Eastern or South Asian background, many of whom, including Mango and the tech engineer, said they are concerned they were singled out because of racial or religious profiling.

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It is clear that people traveling into and out of the US have a lower expectation of privacy at the border. Perhaps more accurately, a governmental search at the border is more likely to be considered "reasonable."

The agents get to do things they can't do if, for example, they simply stop you on the street. They can question you, they can rifle through your unmentionables, and even examine documents you are bringing with you. The agents can even disassemble your gas tank, looking for hidden compartments that you could be using to smuggle things. In the Arnold case, the government argued that its search authority at the border is "plenary" or unrestricted, except that to do an invasive body cavity search, it would have to have some kind of suspicion.

But searches of things? Well, they can do whatever they want it would seem.

The customs agents' job is to protect the nation from "anything harmful," to gather intelligence, prevent terrorism, and to enforce all of the laws, including child pornography and copyright laws. The computer is no different from any other "closed container" that the agent may search. Just as the agent needs no probable cause to search your underwear, they need no probable cause to rummage through your laptop. And besides, they are doing it to protect the country and enforce the laws and prevent terrorist attacks. You don't have any privacy rights at the border anyway, so what's the problem?

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Two groups have asked the courts to review a decision that allows border-patrol agents to search U.S. citizens' laptops without suspicion of crime.

The Electronic Frontier Foundation and the Association of Corporate Travel Executives claim that the laptop searches violate citizens' Fourth Amendment rights, which protect them from unreasonable search and seizures.

The case began in 2005, after U.S. citizen Michael Arnold returned to the U.S. from the Philippines and was arrested by Customs and Border Patrol agents who searched his laptop. A district court ruled in Arnold's favor. 

A three-judge panel from the 9th Circuit Court of Appeals overturned the district court's decision in April.

The Electronic Frontier Foundation and the Association of Corporate Travel Executives now contend that the 9th Circuit Court of Appeals' decision essentially negated the Fourth Amendment and put citizens' privacy and identities at risk, since border patrols can confiscate laptops and make full copies of their contents.

The two groups argue that laptops often contain personal banking and identity information and the level of privacy invasion at a border search is "enormous."

The groups are asking the court to require border agents to have reasonable suspicion of a crime to search a laptop. A decision on whether the court will rehear the case is expected to come within the next few months.

Wisconsin Senator Russ Feingold wants to restrict search and seizures of laptops and other digital devices at U.S. borders.

The Democratic chairman of the Senate Judiciary subcommittee on the Constitution, civil rights and property rights, called for laws to protect against this gross violation of privacy after a recent hearing on customs searches of digital technology such as laptop computers, hand-held devices and disk storage drives.

Feingold is particularly upset that federal courts have not taken action.

If the courts can't offer that protection, then that responsibility falls to Congress, said Feingold, who compared the search of a computer to a search of a body cavity which legally requires "probable suspicion" prior to the search.

Customs and border officials warn that exempting laptops, cellular phones, digital cameras and other devices from routine searches would make it easier to smuggle pornography, terrorism plans or other dangerous recorded material into the United States.

IPods, mobile phones and laptops could be examined by airport customs officials for illegal downloads under new anti-counterfeiting measures being considered by G8 governments this week, it is claimed.

There are fears that individuals who have illegally downloaded songs or video clips on to MP3 players and phones for personal use could be caught out.

Illegal downloading and piracy is said to represent the biggest single problem faced by the music, film and publishing industries, and many have been lobbying governments to introduce tough new rules to help stamp out the practice.

So far, little has been revealed about the Anti-Counterfeiting Trade Agreement being considered by the G8 nations, apart from a mention in the organisation's "Declaration on the World Economy" published this week.

Backing the development of the new agreement, it said: Effective promotion and protection of Intellectual Property Rights are critical to the development of creative products, technologies and economies.

A leak to a technology website revealed that the focus of Acta was border measures, particularly how to deal with large-scale intellectual property infringements.

A footnote saying that those signing up to Acta should put in place provisions related to criminal enforcement and border measures to be applied at least in cases of trademark counterfeiting and copyright piracy, has generated intense speculation about what it could mean for the individual.

The suggestion that the new laws could be used by customs to scan MP3 players, mobiles and laptops for illegal downloads is just one of a number of potential measures that is causing concern in the technology world, leading to fevered debate about the implications on a number of websites.

Another is that mobile phone companies could contact their customers to warn them off sharing video clips.

Travellers to the U.S. could have their laptops and other electronic devices seized at the airport under new anti-terror measures.

Federal agents have been granted powers to take such devices and hold them as long as they like. They do not even need grounds to suspect wrongdoing.

The Department of Homeland Security said the policies applied to anyone entering the country by land, sea or air, including U.S. citizens.

The extent of the new powers, which have been secretly in place for some time, was revealed in the Washington Post.

They cover hard drives, flash drives, mobile phones, iPods, pagers, beepers, and video and audio tapes, as well as books, pamphlets and other written materials, the report said.

Federal agents must take measures to protect business information and lawyer-client privileged material.

Copies of data must be destroyed when a review is completed and no probable cause exists to keep the information. But agents are allowed to share the contents of seized computers with other agencies and private entities for data decryption and 'other reasons'.

The new powers came to light under pressure from civil liberties and business travel groups after increasing numbers of travellers reported that they had laptops, phones and other digital devices removed and examined.

The development was described as 'truly alarming' by Wisconsin Democrat Senator-Russell Feingold, who is investigating U.S. border search practices. He said he intends to introduce legislation that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

Technology that claims to simply identify illicit images on PCs has attracted the interest of Australian cops. The software, developed in an Australian University, might eventually be used to screen PCs during border inspections.

Compared to breath test tools used by the police in a different context, the software - developed at Perth's Edith Cowan University in association with local police from Western Australia - is undergoing beta testing.

Described as Simple Image Preview Live Environment (SImPLE), the application is designed to be easy to use by law enforcement officers, even those with few computer skills. The main application of the technology is said to be hunting for images of child abuse though other application, such as border screening of computers, are under review.

The software runs off a Linux-bootable CD that can be put into the CD-ROM drive of a PC to load up a separate environment without affecting anything already on the PC. Copies of potentially interesting evidence are written to a DVD- writer.

Evidence obtained through the tool is admissible in court, at least in Australia.

Australian scientists hope to sell the software to law enforcement agencies worldwide following its release, scheduled for next February. The application is only capable of searching for dodgy content in existing files, not for deleted or partially overwritten files, unlike more powerful forensic tools.

Its developers say the tool will cut down on the workload faced by computer forensic specialists by allowing front line cops to perform a screening role. That might be good for the needs of law enforcement but it might encourage a stop and search culture of computers, particularly at border control, that is sure to raise objections from civil liberties activists and result in more random searches.