[Infowarrior] - New bill would tighten rules for DHS border laptop searches

[Richard Forno]

New bill would tighten rules for DHS border laptop searches

By Nate Anderson | Published: September 16, 2008 - 01:30PM CT

http://arstechnica.com/news.ars/post/20080916-new-bill-wants-tighter-rules-for-laptop-border-searches.html

Customs and Border Patrol agents can grab your laptop, BlackBerry, or  
external hard drive without needing so much as a reason, but a new  
bill introduced last week to Congress would at least put some limits  
on how border searches could be done.

"I was deeply concerned to learn about the lack of protections  
individuals' have when their electronic equipment is randomly seized,"  
said Rep. Loretta Sanchez (D-CA), who introduced the bill. "With the  
passage of the Border Search Accountability Act of 2008, Americans  
will be able to travel with more peace of mind knowing that their data  
will be further protected and that there are stringent accountability  
measures in place for safeguarding their personal information."

Note what her bill will not do—make searches more difficult. Earlier  
this year, the Ninth Circuit Court of Appeals found that border  
searches of electronic devices (even those without any probably cause)  
did not run afoul of the Fourth Amendment's unreasonable search and  
seizure clause. Judges noted that precedent already allows searches of  
1) briefcases and luggage, 2) a purse, wallet, or pocket, 3) papers  
found in pockets, and 4) pictures, films, and other graphic material.  
So why not laptops?

While such searches would not appear to be legal within the country,  
courts have long recognized the government's right to "protect its  
territorial integrity" by controlling the material passing across its  
borders.

Sanchez's bill would bring more routine to the search process. The  
bill requires the government to draft additional rules regarding  
information security, the number of days a device can be retained,  
receipts that must be issued when devices are taken, ways to report  
abuses, and it requires the completion of both a privacy impact study  
and a civil liberties impact study. Travelers would also have the  
explicit right to watch as the search is conducted.

Sanchez also wants data about the searches, which would have to be  
turned over to Congress once per quarter. Specifically, she wants to  
know how many searches are being done, where they take place, and the  
race and nationality of those being searched.

The Department of Homeland Security actually issued search rules over  
the summer; while they were the first rules made public on the  
process, which had started to look quite ad-hoc, they still came in  
for criticism from groups like the Association of Corporate Travel  
Executives. ACTE, which doesn't like have executive laptops pinched  
whenever someone travels overseas, complained in early August that  
devices could basically be kept indefinitely, the data could be shared  
with foreign governments, and no data destruction procedures were  
spelled out.

Coming so close to the end of this Congressional session, Sanchez's  
bill is unlikely to see action this year. It currently sits in the  
House Committee on Homeland Security, where it will likely expire when  
Congress adjourns.

Given the tremendous uncertainty the electronic search process creates  
for travelers, 40 civil liberties groups asked Congress back in May to  
hold hearings on the issue; so far, that has yet to happen, but Ars  
has spoken with several frequent travelers who already that  
precautions with sensitive corporate and personal data before going on  
international trips.

Perhaps the laptop search program will turn out to be as much of a  
boon for online data repositories as it will for the federal  
government.