Laptop searches at border might get restricted
AP Technology Writer
Mohamed Shommo, an engineer for Cisco Systems Inc., travel
several times a year for work, so he is accustomed to opening his bags
for border inspections upon returning to the U.S. But in recent years,
these inspections have gone much deeper than his luggage.
agents have scrutinized family pictures on Shommo's digital camera,
examined Koranic verses and other audio files on his iPod and even
looked up Google keyword searches he had typed into his company laptop.
literally searched everywhere and every device they could," said
Shommo, who now minimizes what he takes on international trips and
deletes pictures off his camera before returning to the U.S. "I don't
think anyone has a right to look at my private belongings without my
permission. You never know how they will interpret what they find."
all the personal details that people store on digital devices, border
searches of laptops and other gadgets can give law enforcement
officials far more revealing pictures of travelers than suitcase
inspections might yield. That has set off alarms among civil liberties
groups and travelers' advocates — and now among some members of
Congress who hope to impose restrictions on the practice next year.
fear the government has crossed a sacred line by rummaging through
electronic contact lists and confidential e-mail messages, trade
secrets and proprietary business files, financial and medical records
and other deeply private information.
These searches, opponents
say, threaten Fourth Amendment safeguards against unreasonable search
and seizure and could chill free expression and other activities
protected by the First Amendment. What's more, they warn, such searches
raise concerns about ethnic and religious profiling since the targets
often are Muslims, including U.S. citizens and permanent residents.
feel like I don't have any privacy," said Shommo, a native of Sudan who
has been in the U.S. for more than a decade and plans to apply for
citizenship next year. "I don't feel treated equally to everybody else.
I feel discriminated against."
Customs and Border Protection,
part of the Department of Homeland Security, asserts that it has
constitutional authority to conduct routine searches at the border —
without suspicion of wrongdoing — to prevent dangerous people and
property from entering the country. This authority, the government
maintains, applies not only20to suitcases and bags, but also to books,
documents and other printed materials — as well as to electronic
Such searches, the government notes, have uncovered
everything from martyrdom videos and other violent jihadist materials
to child pornography and stolen intellectual property.
Homeland Security points out that these procedures predate the attacks
of Sept. 11, 2001, civil liberties groups have seen an uptick in
complaints about border searches of electronic devices in the past two
years, according to Shirin Sinnar, staff attorney at the Asian Law
Caucus. In some cases, travelers suspected border agents were copying
their files after taking their laptops and cell phones away for
anywhere from a few minutes to a few weeks or longer.
inspections appear to amount to "a fishing expedition" by border
agents, said Farhana Khera, executive director of Muslim Advocates.
objections led the Asian Law Caucus and the Electronic Frontier
Foundation to file a Freedom of Information request to obtain the
federal policy on border searches20of electronic devices. When the
government failed to respond, the groups filed a lawsuit this year. And
lawmakers began demanding answers.
So in July, amid the mounting
outside pressure, Homeland Security released a formal policy stating
that federal agents can search documents and electronic devices at the
border without suspicion. The procedures also allow border agents to
detain documents and devices for "a reasonable period of time" to
perform a thorough search "on-site or at an off-site location."
problem with this policy, argues Marcia Hofmann, staff attorney with
the Electronic Frontier Foundation, is that the contents of a laptop or
other digital device are fundamentally different than those of a
As Sen. Ron Wyden, D-Ore., who is co-sponsoring
one of several bills in Congress that would restrict such searches, put
it: "You can't put your life in a suitcase, but you can put your life
on a computer."
Susan Gurley, executive director of the
Association of Corporate Travel Executives, which filed its own Freedom
of Information re
quest to obtain the government's laptop search policy,
noted that border searches pose a particular concern for international
business travelers. That's because they often carry sensitive corporate
information on their laptops and don't have the option of leaving their
computers at home.
And for many travelers, the concerns go beyond
their own privacy or the privacy of their employers. Lawyers may have
documents subject to attorney-client privilege. Doctors may be carrying
Tahir Anwar is an imam at a mosque in San Jose,
Calif., so his laptop and iPhone contain confidential information about
the mosque's members, including their personal e-mail messages.
has traveled abroad 12 times over the past 2 1/2 years and he has been
detained upon returning to the U.S. every time. Border agents have
searched his laptop and once took away his cell phone for 15 minutes.
when Anwar travels, he simply leaves his laptop behind and deletes
e-mail off his iPhone before crossing the border, synching it back up
with his computer after he gets home.
"People tell me their
innermost secrets," Anwar said. "I tell people to e-mail me, so a lot
of personal information is in my e-mail. If people find out that this
information is being looked at, I can't serve my purpose and people
won't come to me."
For its part, the government argues that some
of the most dangerous contraband is transported in digital form today —
making searches of electronic devices a crucial law enforcement tool.
the successful searches the government cites from recent years: In
2006, a man arriving from the Netherlands at the Minneapolis airport
had digital pictures of high-level Al-Qaida officials, and video clips
of improvised explosive devices being detonated and of the man reading
his will. The man was convicted of visa fraud and removed from the
"To treat digital media at the international border
differently than Customs and Border Protection has treated documents
and other conveyances historically would provide a great advantage to
terrorists and others who seek to do us harm," Jayson Ahern, the
agency's deputy commissioner, said in a statement submitted to the
Senate Judiciary subcommittee on the Constituti
on in June. Homeland
Security did not send anyone to testify.
Amy Kudwa, a spokeswoman
for the department, also stressed that a tiny fraction of 1 percent of
all travelers are singled out for laptop searches at the border. She
added that Homeland Security does not profile based on religion, race,
ethnicity or any other criteria in conducting such searches.
So far, only a handful of court cases have addressed the issue.
appeals courts in two circuits have upheld warrantless or
"suspicionless" computer searches at the border that turned up images
of child pornography used as evidence in criminal cases.
last year, a U.S. magistrate judge in Vermont ruled that the government
could not force a man to divulge the password to his laptop after a
search at the Canadian border found child pornography. The U.S.
Attorney's Office in Vermont is appealing the decision to the U.S.
Now Congress is getting involved. A handful of bills have been introduced that could pass next year.
measure, sponsored by Sen. Russell Feingold, D-Wis., chairman of the
Constitution subcommittee, would require reasonable suspicion of
illegal activity to search the contents of electronic devices carried
by U.S. citizens and legal residents. It wou
ld also require probable
cause and a warrant or court order to detain a device for more than 24
And it would prohibit profiling of travelers based on race, ethnicity, religion or national origin.
Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also
require suspicion to inspect electronic devices. Engel said he is not
trying to impede legitimate searches to protect national security. But,
he said, it is just as important to protect civil liberties.
outrageous that on a whim, a border agent can just ask you for your
laptop," Engel said. "We can't just throw our constitutional rights out
December 8, 2008 - 7:08 a.m. Copyright
2008, The Associated Press.