Customs Seizing Laptops and Cellphones

JBS - The seizure of electronics at U.S. borders is increasing and prompting protests from travelers. Travelers now are choosing to either leave their laptops and other electronic equipment at home, or have the hard drives or cellphones cleaned of sensitive information before traveling.

A U.S. citizen and tech engineer returning from a business trip to London objected when a federal agent wanted his password for his laptop. He protested, saying the laptop belonged to the company, not to him. Under duress, he did finally agreed to log on and watched as the agent copied the web sites he had visited.

A British citizen and marketing executive with a global travel management firm who routinely flies between London and Dulles International reported that an agent there told her he had “a security concern” with her. She was given the option of turning over her laptop or not getting on the flight. “I was assured that my laptop would be given back to me in 10 or 15 days,” said Maria Udy. The agent copied her log-on and password and asked to see her email. A year later she has still not received her laptop, nor has she been given any explanation.

With more than two dozen complaint cases, 15 involving searches of cellphones, laptops, MP3 players and other electronics, the Electronic Frontier Foundation and Asian Law Caucus, two civil liberties groups, are filing a lawsuit to force the government to disclose its policies on border searches. If conducted inside the country, these types of searches would normally require a warrant and probable cause.

Lynn Hollinger, a U.S. Customs and Border Protection (CBP) spokeswoman says a laptop may be seized if it contains information tied to terrorism, narcotics smuggling, child porn or any other criminal activity. But how could any agent, at any Customs venue know in advance if that type of info is on any given laptop? They can’t. And a Customs statement that searches are based on “information from various systems and specific techniques for selecting passengers,” is much too ambiguous for comfort. Its acknowledgement that CBP officers “may, unfortunately, inconvenience law-abiding citizens in order to detect those involved in illicit activities,” doesn’t wash either. We’re talking about unconstitutional searches and seizures here.

The Association of Corporate Travel Executives (ACTE), tracks complaints from over 2,500 member businesses and their employees who have had laptops seized and the contents copied. They said that not one of the travelers in this category was ever charged with a crime. ACTE has filed a Freedom of Information Act request, asking for information on what happens to data seized by custom agents.

Some companies would rather their executives travel with “blank laptops,” and access information through the Internet. It has its risks, but Lou Brzezinski, a partner in a Toronto law firm says “those are hacking risks as opposed to search risks.”

In a court case now pending, the government has already stated the position that it has the authority to protect the country’s borders by looking at any information stored in electronic devices without any suspicion of a crime. [Emphasis added.] They regard laptops the same as suitcases. David D. Cole, a law professor at Georgetown University disagrees. He believes it is not reasonable “for them to read your mind and everything you have though 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 e-mail you have sent.”

If the government’s position on these unlawful searches is upheld, every traveler will face the risk of search and seizure, and more. Lawyers would stand to lose confidential info, company trade secrets would be at risk, journalists would be under new scrutiny, and even teenagers could be arrested if they couldn’t prove they downloaded music to their iPods legally.

Hollinger of the CBP says customs officers “are trained to protect confidential information.” Now, doesn’t that make you feel better?