Monday, June 30, 2008

U.S. Customs Agents Allowed To Seize Laptops, Cameras, And Other Data Devices From Travelers Without Probable Cause

Did you know that when you enter the United States, customs officials are not only allowed to check your laptop, Blackberry, or camera, but are also authorized to seize it on the spot without probable cause or even giving you a reason? And it doesn't matter whether or not you're an American citizen.

So a story published on June 24th, 2008 in the U.S. News and World Report claims (you'll also find the public comments appended to the story quite informative). According to the story, upon his return from Germany in February 2008, freelance journalist Bill Hogan was selected for additional screening by customs officials at Dulles International Airport outside Washington. Agents searched his luggage, he said, "then they told me that they were impounding my laptop."

Hogan also disclosed that customs agents examined his bags and also inspected the memory card from his camera. "It was fortunate that I didn't use [the laptop] for work," he said, "or I would have had to call up all my sources and tell them that the government had just seized their information." When customs offered to return the computer nearly two weeks later, Hogan had it shipped to his lawyer.

How common Hogan's experience is remains unclear. But an April 2008 ruling by the U.S. Ninth Circuit Court of Appeals found that the Department of Homeland Security, which oversees Customs and Border Protection, does have full authority to search any electronic devices without suspicion in the same way that it can inspect briefcases. Click HERE to view the 13-page court decision in PDF format.

Citing the threat of lawsuits, customs officials decline to say how many computers, storage drives, cellphones, and BlackBerrys they have confiscated or what happens to them afterward. Officials declined to testify at a recent Senate hearing, although they wrote in a prepared statement that officers "have the responsibility to check items such as laptops and other personal electronic devices to ensure that any item brought into the country complies with applicable law and is not a threat to the American public."

But congressional investigators say that copies of drives are sometimes made, meaning customs could be duplicating corporate secrets, legal and financial data, personal E-mails and photographs, along with stored passwords for accounts with companies ranging from Netflix to Bank of America.

The practice of storing and duplicating material might be something that both opponents and supporters of seizure could agree to regulate, says Kansas Republican Sen. Sam Brownback, an otherwise staunch supporter of customs' authority. Larry Cunningham, an assistant district attorney from New York, told the hearing: "I am aware of no authority that would permit the government, without probable cause to believe it contains contraband, to keep a person's laptop or to copy the contents of its files." But while in most cases, the Feds return the devices in two weeks to a month, some people end up waiting a year.

Customs officials further defend the practice by insisting that "terrorism" and "child pornography" are sufficient justification for electronics searches. And even civil libertarians agree it makes sense for customs to search luggage, which could pose immediate dangers to aircraft and passengers. But, says Marc Rotenberg, executive director of the Electronic Privacy Information Center, "customs officials do not go through briefcases to review and copy paper business records or personal diaries, which is apparently what they are now doing in digital form. These pda's don't have bombs in them."

And then there are the precedents that critics say the program could set. Imagine, they say, if other nations began seizing the laptops of U.S. travelers. How could we object when we do it ourselves? Indeed, U.S. officials have advised visitors to this summer's Olympics in Beijing that their laptops may be targeted for duplication or bugging by the Chinese.

This is not necessarily a new practice. According to a October 2006 CNN report, the enabling legislation for this practice was actually passed back in 1985. And relatively few people are aware of this practice; CNN also reported that the Association of Corporate Travel Executives (ACTE) surveyed their members and found out that 90 percent of them didn't know the Feds were allowed to do this. And with the implementation of the proposed Anti-Counterfeiting Trade Agreement, seizures may actually increase under the pretext of looking for "pirated" material such as songs or movies.

Of concern to many is the possibility of the contents of a laptop being copied and then distributed to people who should not have the information. This can include passwords and sensitive financial information. But another concern is the idea that your property can be seized outright without cause. The Feds don't care that you paid for it out of your pocket or that you might be inconvenienced by the loss of your property. It's important to specify that it's only customs who are confiscating these devices without probable cause, not TSA. According to the TSA blog, TSA agents do NOT confiscate these devices without probable cause, and TSA recommends that if one of their agents tries to do so, ask to see a screening supervisor.

The Electronic Frontier Foundation (EFF) is taking the lead in fighting against this type of arbitrary behavior. Click HERE to find out what steps you can take. The Crunchgear.com website offers a list of precautions one can take to protect data and access, although they wrongfully attribute the problem to TSA rather than customs.

The bottom line: It's O.K. for customs to check these devices to ensure they're not explosives or aren't being used to conceal contraband. But it is not O.K. for them to be actually confiscating the devices and depriving innocent people of the use of their property. The Fourth Amendment needs to be re-emphasized and enforced.

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