Customs Agents Copy Travelers’ Laptop, Phone Data

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Americans coming home from business trips or vacations abroad are unwittingly offering the federal government a valuable souvenir: a copy of all the data on their laptops, digital cameras, and cell phones.

Witnesses at a Senate hearing yesterday described a series of recent court rulings holding that customs agents don’t need a warrant or even reasonable suspicion to search computers and personal electronic gear brought into America at the border or through an international airport. Business and civil liberties advocates told senators that customs officials sometimes copy an entire laptop hard drive, camera memory, or cell phone’s message and call history — and then hang on to the copy indefinitely.

“It is clear most people regard this as a serious privacy invasion,” an attorney who litigates on technology issues, Lee Tien of the Electronic Frontier Foundation, told the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Property Rights. “People keep their lives on these devices.”

Courts have allowed the border searches based on the premise that a computer is no different than the luggage or other personal effects hauled through customs every day.

“Officials 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, contacts, and pictures on a laptop?” a law professor at George Mason University, Nathan Sales, said. Searches of laptops at airports have proved particularly useful in snaring travelers involved in child pornography.

Senator Feingold of Wisconsin, a Democrat who called the hearing, said Muslim and South Asian travelers seem to be the most frequent targets for electronics searches and intrusive questioning. “Travelers are asked why they chose to convert to Islam, what they think about Jews, and their views of the candidates in the upcoming elections. This questioning is deeply disturbing in its own right,” the senator said.

In an interview yesterday, a technology consultant from Fremont, Calif., Amir Khan, said he has been questioned extensively after each of the five international trips he has taken since 2001. Returning from Pakistan last year, he was asked to log in to his computer so customs agents could access it. “I said, ‘What are you looking for?’ He said he was looking for porno videos. He said, even if I refuse, they will force me to log in,” Mr. Khan said.

After he said he was not religious, a Muslim customs agent urged him to pray more, Mr. Khan said.

Muslim and civil liberties groups complaining about the searches have found an ally in corporate America. “The copying and retention of sensitive business information imposes both personal and economic hardship on business travelers and their corporations,” Susan Gurley of the Association of Corporate Travel Executives told the panel. She said some executives are now using “scrubbed computers” solely for foreign travel.

As the hearing began, Senator Brownback, a Republican of Kansas, said the rationale for border searches is “obvious.” He noted that a conspirator in the September 11, 2001, attacks on the World Trade Center, Zacarias Moussaoui, kept information on his laptop “that, if discovered, might have prevented” those strikes.

However, later in the session, Mr. Brownback acknowledged a visceral discomfort with government agents rifling through his digital assistant when he crosses the border. “I don’t like the idea of coming across with my BlackBerry and somebody saying, ‘I want to root around in your whole BlackBerry.’ I got a lot of things on there. I don’t know what all is on there, in some cases. I don’t want people looking at that randomly,” the senator said.

An assistant district attorney from the Bronx, Larry Cunningham, noted that even if America put limits on border searches, other countries could still conduct them.

However, a former Clinton administration official, Peter Swire, said that by failing to set any standard, America was encouraging countries such as China to copy the contents of every laptop a Western business executive brings in. “We have gotten on the wrong side of the issue,” Mr. Swire said.

The Department of Homeland Security’s Customs and Border Protection division declined to send a witness yesterday, citing a scheduling conflict. “CBP is pleased that its longstanding search authority at the border, including the authority to search, without suspicion, laptop computers for violations of law, has been upheld,” a spokeswoman, Lynn Hollinger, said in an e-mailed statement. She said the agency does not engage in racial profiling and has “safeguards and procedures in place to protect privileged, personal, and business information.”

Mr. Feingold said laptop searches conducted without reasonable suspicion run afoul of the Constitution. “Ideally, Fourth Amendment jurisprudence would evolve to protect Americans’ privacy in this once unfathomable situation,” he said. “If the courts can’t offer that protection, then the responsibility falls to Congress.”

Mr. Swire said he believes anger over the government’s refusal to explain its policies and rules for such searches is likely to grow. “This issue may be a lot hotter issue than people realize. It may mobilize the reserve army of outraged techies,” the lawyer said.


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