[Infowarrior] - Senators Question Border Laptop Searches

[Richard Forno]

Senators Question Border Laptop Searches

http://www.pcworld.com/businesscenter/article/147546/ 
senators_question_border_laptop_searches.html

Wednesday, June 25, 2008 9:40 AM PDT

Two U.S. senators called on U.S. Customs and Border Protection (CBP)  
to back off its assertion that it can search laptops and other  
electronic devices owned by U.S. citizens returning to the country  
without the need for reasonable suspicion of a crime or probable cause.

Senators Russell Feingold, a Wisconsin Democrat, and Patrick Leahy, a  
Vermont Democrat, both urged CBP to reconsider its policy that  
apparently has lead to frequent searches of laptops, digital cameras  
and handheld devices at borders.

"If you asked [U.S. residents] whether the government has a right to  
open their laptops, read their documents and e-mails, look at their  
photographs, and examine the Web sites they have visited, all without  
any suspicion of wrongdoing, I think those same Americans would say  
that the government has absolutely no right to do that," said  
Feingold, chairman of the Senate Judiciary Committee's Subcommittee  
on the Constitution, Civil Rights and Property Rights. "And if you  
asked him whether that actually happens, they would say, 'not in the  
United States of America.'"

Two witnesses at a hearing before the subcommittee Wednesday  
described widespread CBP searches of electronic devices at borders,  
with data copies and devices sometimes confiscated for weeks. One  
Muslim executive at a U.S. tech vendor has been subjected to border  
interrogations at least eight times since early 2007, said Farhana  
Khera, president and executive director of Muslim Advocates.

Other travelers have been asked why they are Muslim, were questioned  
about their views of U.S. presidential candidates and had laptops and  
cell phones searched or confiscated, Khera said. "Innocent Muslim,  
Arab and South Asian Americans from all walks of life have had their  
electronic devices searched by CBP agents, or have been interrogated  
by CBP agents ... all without any reasonable suspicion that the  
individuals were engaged in unlawful activity," she said.

In a February survey of its membership, the Association of Corporate  
Travel Executives found that 7 percent said they've had electronic  
devices seized at the U.S. border, said Susan Gurley, executive  
director of the trade group. It can take weeks to have those devices  
returned, and the seizures can disrupt the owners' work and require  
companies to buy costly replacements, she said.

Half of the survey respondents said a seizure of an electronic device  
could damage their standing within their companies, Gurley said.  
"These devices constitute the offices of today," Gurley said.

But other witnesses at the hearing suggested laptops should be  
treated no differently than luggage, which CBP can search without  
reasonable suspicion or probable cause. U.S. courts have recognized  
that there's a less restrictive standard for "routine" searches and  
seizures at U.S. borders than police searches within the nation, said  
Nathan Sales, a law professor at George Mason University and former  
official at the U.S. Department of Homeland Security.

Searches of electronic devices at borders have caught several child  
pornographers and can be used to prevent terrorist attacks, he said.

CBP should be more open about its electronic search policies, Sales  
said, but U.S. courts have recognized no difference between searches  
of luggage and of laptops. "The privacy protections we enjoy  
shouldn't depend on whether we store our information on paper or in  
the digital world," Sales said. "Officers can search mail, they can  
search address books, they can search photo albums at the border with  
no suspicion at all. Why should the rule change when we keep our  
correspondence, our contacts or our pictures on a laptop?"

Senator Sam Brownback, a Kansas Republican, agreed that CBP needs  
more authority to conduct searches at the border than other law  
enforcement officials have inside the U.S. Only in a few cases, such  
as strip searches, are CBP officials required to have suspicions of  
illegal activity, he noted.

"I hope we can go through this on the basis of protecting an  
individual's rights, but also looking at trying to protect the  
country," Brownback said.

However, Brownback said he would not want his BlackBerry searched by  
border agents.

Lee Tien, a senior staff attorney with the Electronic Frontier  
Foundation (EFF), acknowledged that border agents have more power to  
conduct searches than internal U.S. police. But searching and seizing  
laptops, which often contain an "autobiography" of their owners,  
should be considered unreasonable and invasive under the U.S.  
Constitution's Fourth Amendment banning such searches, he said.

"EFF does not dispute that the Fourth Amendment works differently at  
the border," Tien said. "But 'differently' does not mean 'not at all.'"