Seizing Laptops and Cameras Without Cause

Returning from a brief vacation to Germany in February, Bill Hogan was selected for additional screening by customs officials at Dulles International Airport outside Washington, D.C. Agents searched Hogan’s luggage and then popped an unexpected question: Was he carrying any digital media cards or drives in his pockets? “Then they told me that they were impounding my laptop,” says Hogan, a freelance investigative reporter whose recent stories have ranged from the origins of the Iraq war to the impact of money in presidential politics.

Shaken by the encounter, Hogan says he left the airport and examined his bags, finding that the agents had also removed and inspected the memory card from his digital camera. “It was fortunate that I didn’t use that machine for work or I would have had to call up all my sources and tell them that the government had just seized their information,” he said. When customs offered to return the machine nearly two weeks later, Hogan told them to ship it to his lawyer.

The extent of the program to confiscate electronics at customs points is unclear. A hearing Wednesday before the Senate Committee on the Judiciary’s Subcommittee on the Constitution hopes to learn more about the extent of the program and safeguards to traveler’s privacy. Lawsuits have also been filed, challenging how the program selects travelers for inspection. Citing those lawsuits, Customs and Border Protection, a division of the Department of Homeland Security, refuses to say exactly how common the practice is, how many computers, portable storage drives, and BlackBerries have been inspected and confiscated, or what happens to the devices once they are seized. Congressional investigators and plaintiffs involved in lawsuits believe that digital copies – so-called “mirror images” of drives – are sometimes made of materials after they are seized by customs.

A ruling this year by the 9th Circuit Court of Appeals found that DHS does indeed have the authority to search electronic devices without suspicion in the same way that it would inspect a briefcase. The lawsuit that prompted the ruling was the result of more than 20 cases, most of which involved laptops, cellphones, or other electronics seized at airports. In those cases, nearly all of the individuals were of Muslim, Middle Eastern, or South Asian background.

Travelers who have their computers seized face real headaches. “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. It immediately deprives an executive or company of the very data – and revenue – a business trip was intended to create,” says Susan Gurley, head of the ACTE, which is asking DHS for greater transparency and oversight to protect copied data. “As a businessperson returning to the U.S., you may find yourself effectively locked out of your electronic office indefinitely.” While Hogan had his computer returned after only a few days, others say they have had theirs held for months at a time. As a result, some companies have instituted policies that require employees to travel with clean machines: free of corporate data.

The security value of the program is unclear, critics say, while the threats to business and privacy are substantial. If drives are being copied, customs officials are potentially duplicating corporate secrets, legal records, financial data, medical files, and personal E-mails and photographs as well as stored passwords for accounts from Netflix to Bank of America. DHS contends that travelers’ computers can also contain child pornography, intellectual property offenses, or terrorist secrets.

It makes practical sense to X-ray the contents of checked and carry-on luggage, which could pose an immediate danger to airplanes and their passengers. “Generally speaking, 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 now in digital form – these PDAs don’t have bombs in them,” says Marc Rotenberg, executive director of the Electronic Privacy Information Center. More troubling is what could happen if other countries follow the lead of the United States. Imagine, for instance, if China or Russia began a program to seize and duplicate the contents of traveler’s laptops. “We wouldn’t be in a position to strongly object to that type of behavior,” Rotenberg says. Indeed, visitors to the Beijing Olympic Games have been officially advised by U.S. officials that their laptops may be targeted for duplication or bugging by Chinese government spies hoping to steal business and trade secrets.

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.'”