WASHINGTON, D.C. — The pursuit of homeland security is making more than a few Americans feel insecure, at least at international airports and other border-crossing stations.Reports of electronic-device searches and seizures are reaching epic proportions, even among American citizens who thought they were guaranteed privacy under the Fifth Amendment to the U.S. Constitution.
Evidently, they were wrong.
Last year, a woman who has been a naturalized American citizen since 1965 had her cellular phone seized at a customs-inspection station within an airport as she returned from a trip to Jordan. When the phone was returned to her, some of its data had been erased. A few months earlier at the same airport, another American citizen returning from a business trip to London was surprised and appalled when a customs officer demanded access to a company-issued laptop the engineer carried. After the engineer typed in the password, the customs officer made copies of the device’s Web cache files.
The situation is even worse for foreign nationals. A marketing executive who is a British citizen working for a company based in Bethesda, MD, was forced to surrender her company-issued laptop to a U.S. federal officer or be denied boarding a flight to London. More than one year later, she has received neither the laptop nor an explanation for its confiscation. In the interim, she has changed all of her usernames and passwords and no longer banks online. A Cisco Systems software engineer who is of Middle-Eastern heritage but is a permanent resident of the U.S. had the SIM card from his cell phone confiscated. It contained all of his personal and professional contacts’ information, and he worries they are now on a “terrorist watch list.”
Travelers, understandably, are up in arms, and some companies have taken the unorthodox step of requiring all electronic devices employees carry with them on business be wiped clean before they cross U.S. borders. The risk to sensitive proprietary data is not one they wish to assume.
On Wednesday, the Electronic Frontier Foundation and the Asian Law Caucus filed a lawsuit seeking full disclosure of the U.S. government’s policy about border searches, especially where searches and seizures include electronic devices. The suit also seeks boundaries within which border agents can question travelers about their religious and political views.
The new case builds upon some two dozen already in the courts, filed by travelers whose laptops, cell phones, PDAs, MP3 players, and electronic game units have been searched or seized, allegedly without evidence of criminal wrongdoing on the part of those who carry them. In almost all of the cases, the travelers were Muslim or of Middle Eastern or South Asian extraction. The victims claim racial, ethnic or religious profiling is at work, and they insist their First and Fifth Amendment rights have been violated.
The Association of Corporate Travel Executives, which represents 2,500 business executives in the U.S. and abroad, filed one of the pending suits. It revealed that among ACTE members who have had their electronic devices confiscated, most said the devices’ contents had been copied before they were returned to their owners days later.
A U.S. Customs and Border Protection spokeswoman told the Washington Post that certainly is not the case. She said electronic devices may be seized if agents suspect they may contain information about terrorism, drug smuggling, child pornography, or other illegal activities, but they are not taken at random nor are they seized only from individuals who belong to specific groups. However, agents are under no obligation to explain their motives to the people from whom they confiscate devices.
Among the arguments the government has rendered in the pending court cases is one that has many people on edge. Essentially, the government has said it does not need to suspect criminal activity in order to search electronic devices and communications, because the country is at war and the duty to protect U.S. borders and citizens outweighs any right to privacy travelers may think they have. In times like these, according to the feds, laptops and other electronics are no different than suitcases, which may be searched at will at airports and other border crossing points.
“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 government argued in a child-pornography case pending before the 9th Circuit Court of Appeals. “The authority of customs officials to search the former should extend equally to searches of the latter.”
David C. Cole, a law professor at Georgetown University, disputed that claim during an interview with the Washington Post. “It’s one thing to say it’s reasonable for government agents to open your luggage. 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 email you have sent. It’s as if you’re crossing the border with your home in your suitcase.”
There are other implications, as well, according to Mark Rasch, a former federal prosecutor who now serves as a security expert with FTI Consulting.
“Your kid can be arrested because they can’t prove the songs they downloaded to their iPod were legally downloaded,” he told the Washington Post. “Lawyers run the risk of exposing sensitive information about their clients. 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.”
Such searches cannot be conducted inside the U.S. without warrants, legal experts have said. Customs agents are “going well beyond [their] traditional role of looking for contraband and really [are] looking into the content of people’s thoughts and ideas and their lawful political activities,” Shirin Sinnar, a staff attorney with the Asian Law Caucus, told the Post.
