[Infowarrior] - Clarity Sought on Electronics Searches

[Richard Forno]

Clarity Sought on Electronics Searches
Travelers' Devices Seized at Border

By Ellen Nakashima
Washington Post Staff Writer
Thursday, February 7, 2008; A01

http://www.washingtonpost.com/wp-dyn/content/article/2008/02/06/AR2008020604
763_pf.html

Nabila Mango, a therapist and a U.S. citizen who has lived in the country
since 1965, had just flown in from Jordan last December when, she said, she
was detained at customs and her cellphone was taken from her purse. Her
daughter, waiting outside San Francisco International Airport, tried
repeatedly to call her during the hour and a half she was questioned. But
after her phone was returned, Mango saw that records of her daughter's calls
had been erased.

A few months earlier in the same airport, a tech engineer returning from a
business trip to London objected when a federal agent asked him to type his
password into his laptop computer. "This laptop doesn't belong to me," he
remembers protesting. "It belongs to my company." Eventually, he agreed to
log on and stood by as the officer copied the Web sites he had visited, said
the engineer, a U.S. citizen who spoke on the condition of anonymity for
fear of calling attention to himself.

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.

Today, the Electronic Frontier Foundation and Asian Law Caucus, two civil
liberties groups in San Francisco, are filing 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 some 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.

A U.S. Customs and Border Protection spokeswoman, Lynn Hollinger, said
officers do not engage in racial profiling "in any way, shape or form." She
said that "it is not CBP's intent to subject travelers to unwarranted
scrutiny" and that a laptop may be seized if it contains information
possibly tied to terrorism, narcotics smuggling, child pornography or other
criminal activity.

The reason for a search is not always made clear. The Association of
Corporate Travel Executives, which represents 2,500 business executives in
the United States and abroad, said it has tracked complaints from several
members, including Udy, whose laptops have been seized and their contents
copied before usually being returned days later, said Susan Gurley,
executive director of ACTE. Gurley said none of the travelers in the ACTE
suit raised concerns about racial or ethnic profiling. And Gurley said none
of the travelers were charged with a crime.

"I was assured that my laptop would be given back to me in 10 or 15 days,"
said Udy, who continues to fly into and out of the United States. She said
the federal agent copied her log-on and password, and asked her to show him
a recent document and how she gains access to Microsoft Word. She was asked
to pull up her e-mail but could not because of lack of Internet access. With
ACTE's help, she pressed for relief. More than a year later, Udy has
received neither her laptop nor an explanation.

ACTE last year filed a Freedom of Information Act request to press the
government for information on what happens to data seized from laptops and
other electronic devices. "Is it destroyed right then and there if the
person is in fact just a regular business traveler?" Gurley asked. "People
are quite concerned. They don't want proprietary business information
floating, not knowing where it has landed or where it is going. It increases
the anxiety level."

Udy has changed all her work passwords and no longer banks online. Her
company, Radius, has tightened its data policies so that traveling employees
must access company information remotely via an encrypted channel, and their
laptops must contain no company information.

At least two major global corporations, one American and one Dutch, have
told their executives not to carry confidential business material on laptops
on overseas trips, Gurley said. In Canada, one law firm has instructed its
lawyers to travel to the United States with "blank laptops" whose hard
drives contain no data. "We just access our information through the
Internet," said Lou Brzezinski, a partner at Blaney McMurtry, a major
Toronto law firm. That approach also holds risks, but "those are hacking
risks as opposed to search risks," he said.

The U.S. government has argued in a pending court case that its authority to
protect the country's border extends to looking at information stored in
electronic devices such as a laptop without any suspicion of a crime. In
border searches, it regards a laptop the same as a suitcase.

"It should not matter . . . whether documents and pictures are kept in 'hard
copy' form in an executive's briefcase or stored digitally in a computer.
The authority of customs officials to search the former should extend
equally to searches of the latter," the government argued in the child
pornography case being heard by a three-judge panel of the Court of Appeals
for the 9th Circuit in San Francisco.

As more and more people travel with laptops, BlackBerrys and cellphones, the
government's laptop-equals-suitcase position is raising red flags.

"It's one thing to say it's reasonable for government agents to open your
luggage," said David D. Cole, a law professor at Georgetown University.
"It's another thing to say it's reasonable for them to read your mind and
everything you have thought over the last year. What a laptop records is as
personal as a diary but much more extensive. It records every Web site you
have searched. Every e-mail you have sent. It's as if you're crossing the
border with your home in your suitcase."

If the government's position on searches of electronic files is upheld, new
risks will confront anyone who crosses the border with a laptop or other
device, warned Mark Rasch, a technology security expert with FTI Consulting
and a former federal prosecutor. "Your kid can be arrested because they
can't prove the songs they downloaded to their iPod were legally
downloaded," he said. "Lawyers run the risk of exposing sensitive
information about their client. Trade secrets can be exposed to customs
agents with no limit on what they can do with it. Journalists can expose
sources, all because they have the audacity to cross an invisible line."

Hollinger said customs officers "are trained to protect confidential
information."

Shirin Sinnar, a staff attorney with the Asian Law Caucus, said that by
scrutinizing the Web sites people search and the phone numbers they've
stored on their cellphones, "the government is going well beyond its
traditional role of looking for contraband and really is looking into the
content of people's thoughts and ideas and their lawful political
activities."

If conducted inside the country, such searches would require a warrant and
probable cause, legal experts said.

Customs sometimes singles out passengers for extensive questioning and
searches based on "information from various systems and specific techniques
for selecting passengers," including the Interagency Border Inspection
System, according to a Customs statement. "CBP officers may, unfortunately,
inconvenience law-abiding citizens in order to detect those involved in
illicit activities," the statement said. But the factors agents use to
single out passengers are not transparent, and travelers generally have
little access to the data to see whether there are errors.

Although Customs said it does not profile by race or ethnicity, an officers'
training guide states that "it is permissible and indeed advisable to
consider an individual's connections to countries that are associated with
significant terrorist activity."

"What's the difference between that and targeting people because they are
Arab or Muslim?" Cole said, noting that the countries the government focuses
on are generally predominantly Arab or Muslim.

It is the lack of clarity about the rules that has confounded travelers and
raised concerns from groups such as the Asian Law Caucus, which said that as
a result, their lawyers cannot fully advise people how they may exercise
their rights during a border search. The lawsuit says a Freedom of
Information Act request was filed with Customs last fall but that no
information has been received.

Kamran Habib, a software engineer with Cisco Systems, has had his laptop and
cellphone searched three times in the past year. Once, in San Francisco, an
officer "went through every number and text message on my cellphone and took
out my SIM card in the back," said Habib, a permanent U.S. resident. "So
now, every time I travel, I basically clean out my phone. It's better for me
to keep my colleagues and friends safe than to get them on the list as
well."

Udy's company, Radius, organizes business trips for 100,000 travelers a day,
from companies around the world. She says her firm supports strong security
measures. "Where we get angry is when we don't know what they're for."

Staff researcher Richard Drezen contributed to this report.