International travelers entering the United States face potential inspection and seizure of their laptops and other electronic devices, and copying of the electronic files they contain as part of the country's border security. Upheld in April by the U.S. Court of Appeals for the Federal Circuit federal appeals court decision, such activity by border patrol agents has drawn criticism--especially as the U.S. Department of Homeland Security has not complied with requests to provide information--and was the subject of a U.S. Senate hearing last month.
The Association of Corporate Travel Executives testified on behalf of the business travel sector and reiterated its objections, saying that "warrantless" laptop seizure has forced some companies to alter their policies and is especially troubling in terms of how the U.S. government examines and retains electronic files. Other witnesses objected due to privacy concerns and suggested laptop seizures deter foreign visitors.
Supporters of the procedures countered such arguments, saying laptop search and seizure is a crucial aspect of U.S. border security and, as the courts have found, does not violate the U.S. Constitution's Fourth Amendment regarding "unreasonable searches and seizures."
In opening the 25 June hearing of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights, subcommittee chair Sen. Russell Feingold (D-Wisc.) said, "Over the last two years, reports have surfaced that customs agents have been asking U.S. citizens to turn over their cell phones or give them the passwords to their laptops. The travelers have been given a choice between complying with the request or being kept out of their own country. They have been forced to wait for hours while customs agents reviewed and sometimes copied the contents of the electronic devices. In some cases, the laptops or cell phones were confiscated and returned weeks or even months later, with no explanation.
The Bush administration "has argued in court that a laptop can be searched without any suspicion because it is no different from any other 'closed' container," Feingold continued. "I find that argument disingenuous, to say the least."
Chair of the Judiciary Committee Sen. Patrick Leahy (D-Vt.) added: "It may surprise many Americans that their basic constitutional rights do not exist at our ports of entry even to protect private information contained on a computer. It concerns me, and I believe that actions taken under the cover of these decisions have the potential to turn the Constitution on its head."
ACTE since 2006 has been speaking out against what it views as improper laptop seizures at U.S. ports of entry. The association in January issued poll results indicating that 62 of 100 travel industry directors, vice presidents, and managers were unaware that electronic devices can be seized at U.S. ports without a warrant. In April 2008, ACTE warned business travelers "to limit proprietary information on laptop computers when crossing U.S. borders," following the federal appeals court decision.
At the Senate hearing, ACTE executive director Susan Gurley said, "The warrantless and unanticipated seizure of one's mobile office ... can immediately deprive an executive or company of the very data--and revenue--a business trip was intended to create. As a businessperson returning to the U.S., you may find yourself effectively locked out of your office indefinitely."
The potential compromise of sensitive data and information "could force companies to implement new and expensive internal travel policies," Gurley added, including sending data via Web-accessible email, encrypting files, using secure portable disk drives, prohibiting some senior executives from carrying computers and "purchasing additional computers that are scrubbed of any prior emails so that they can be easily replaced."
Gurley told The Transnationalthat law firms in particularhave "been issuing advisories at probably a higher rate than other businesses," owing to concerns over client confidentiality.
Peter Swire, a law professor at Ohio State University and a former chief counselor for privacy in the U.S. Office of Management and Budget, told senators that "prudent businesses will increasingly have to resort to costly supplementary measures to ensure that important business information will make it past the border each and every time." Moreover, he said that companies would be forced to change passwords and encryption keys any time they are revealed at the border, to ensure their systems are not "exposed to additional intrusion." Swire also suggested that international conferences and conventions may opt against holding events in the United States, as attendees arriving from overseas may be deterred by the laptop seizure policy. "Business travelers, at the margin, will decide to use teleconferences or otherwise skip the annoyance and risk of coming to the U.S. for a meeting," he said.
Swire said the laptop seizure policy is not analogous to physical searches of persons and belongings at airports: "Not only does the government get access to an unprecedented wealth of material with a laptop border search, but the government now has the ability to copy, store and analyze that information at its leisure. In traditional border searches, travelers carried their suitcases with them once they cleared customs. With laptop border searches, the government can keep everything in the computer in perpetuity."
He also noted that should the United States maintain the current policy, it would be difficult to object to similar policies applied by other countries. "Even if you trust handing your encryption keys to the U.S., would you feel the same way handing the keys to all your communications to a totalitarian regime?"
Another concern arises from apparent profiling. Feingold said that questions posed to arriving travelers on religious and political views--as has been anecdotally reported--"strongly suggests that border searches are being based, at least in part, on impermissible factors."
Farhana Khera, president of Muslim Advocates, provided several examples of Muslim Americans who faced scrutiny when returning to U.S. airports, including multiple interrogations; questions on religious practices and beliefs, politics and identities of business and personal contacts; and searches of cell phones and laptops. "A corporate vice president of a major high-tech company based in the Seattle area has been subjected to interrogations on at least eight separate occasions since spring 2007," Khera explained. "One U.S. Customs and Border Protection agent told him that to avoid such interrogations he would have to cease international travel."
To those who object to the policies, matters have been made worse by an apparent refusal by DHS to clarify any of its processes, activities, administrative safeguards or the number of travelers impacted by laptop seizures. According to Feingold, despite repeated requests by nonprofit organizations and the Senate Judiciary Committee, DHS (and Secretary Michael Chertoff) had neither satisfactorily answered questions nor provided a witness to testify at the hearing. "DHS did provide written testimony," Feingold said. "That testimony, which incidentally was submitted over 30 hours later than the committee's rules require, provides little meaningful detail on the agency's policies and raises more questions than it answers--questions that no one from DHS is here to address."
Those generally supporting the existing government policy--at least the front-end searching, if not the back-end hardware and data retention--included James Jay Carafano, a senior research fellow at the Heritage Foundation, a conservative Washington think tank. "It is not reasonable to ignore the potential threats that come with laptops," he said. "There have been numerous instances where information gathered from terrorist laptops has provided crucial information. Customs and Border Protection must be able to adapt to threats for which our enemies will constantly be seeking new tactics to elude them."
Similarly, Larry Cunningham, a former assistant district attorney and current assistant professor at St. John's University School of Law, said CBP should continue using searches when deemed necessary. "The threat of random, suspicionless searches may be deterring" terrorists from transmitting plans and other information via laptops, he said. "At the same time, persons have a diminished expectation of privacy at the border. Travelers in the modern age--particularly those who travel internationally--know and expect that they will be subject to search without cause at multiple points in their journeys."
Cunningham said that "no one doubts" that physical items can be examined by CBP at U.S. ports. "Should the high-tech traveler receive special treatment because he carries his private information electronically, rather than in a more traditional form?" he asked.
Solutions
According to Nathan Sales, an assistant professor at George Mason University School of Law, "No court has held that probable cause is needed to conduct a laptop search at the border. And no court has held that customs must obtain a warrant before examining a laptop. My sense is that the Supreme Court is unlikely to disturb this lower-court consensus. I suspect the Supreme Court would be reluctant to hold that data stored electronically is entitled to stronger privacy protections than the very same data would be if stored on paper."
However, Sales put forth several recommendations. "CBP should provide the public with as much information about its laptop searches as is consistent with operational necessity," he said. "CBP also might formalize the standards it uses to pick travelers for laptop searches. For instance, are people selected randomly? On the basis of previous travel history? The manner in which they paid for their airline tickets? Tips from other government agencies about particular passengers? CBP officers' observations about travelers' demeanor? Some combination of factors?" He also suggested CBP "consider guidelines to govern the amount of time it takes to complete a laptop search" and establish standards "on the retention and use of data gathered from laptop searches. If a search fails to uncover any criminal activity, CBP would be hard pressed to justify retaining any data from the passenger's computer."
Along those lines, Gurley said that while there may be disagreement in terms of search, seizure and what constitutes "reasonable suspicion," there is consensus on the need for more information. "We have asked Congress to ask CBP for an impact assessment as to how much information they download from laptops, how many times this happened, what they do with that information, where is it retained, what safeguards are in place to ensure that your data is not compromised once downloaded and then what procedures are in place to destroy the materials."
She added that "there is hope there will be legislation, especially on the back-end issue, to provide more clarity and transparency to data retention and protection rules."
Khera said Muslim Advocates wants Congress to consider legislation that, among other things, would require "reasonable suspicion" for laptop searches and "probable cause" for seizing data and electronic devices, while disallowing racial or ethnic profiling and questions on political or religious views.
Even those who support laptop seizures as a general security tool advocated change. St. John's University's Cunningham suggested that "at the traveler's request, an examination of a computer should occur away from public view. Only officers who have received appropriate training should be allowed to conduct searches, in order to minimize the possibility of irreparable damage to, or erasure of, files and the hardware itself. A rule requiring searches to be conducted in the presence of a supervisor would also be prudent."
The Heritage Foundation's Carafano said that "finding ways to prove that the Department of Homeland Security is somehow conducting illegal searches is not prudent" and instead suggested improving the policy by: establishing "a more concerted intelligence effort," emphasizing border personnel training, using risk-based assessments when conducting searches and "continuing to push the border outward" through such means as checking flight manifests and using electronic systems to collect traveler information before they depart for the United States.
"Ideally, Fourth Amendment jurisprudence would evolve to protect Americans' privacy in this once unfathomable situation," Feingold said. "But if the courts can't offer that protection, then that responsibility falls to Congress. Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicionless searches of Americans' laptops and similar devices go too far. Congress should not allow this gross violation of privacy."
Currently, ACTE is conducting a new poll. Though full survey results won't be tabulated until 15 July, Gurley shared some preliminary findings: Half of 98 respondents thus far said their companies had issued an advisory or alert to travelers regarding possible data or electronic device seizures when crossing U.S. borders, and 40 percent said they or their companies are changing behavior in terms of carrying electronic devices, including computers for business.
An official with the National Business Travel Association said, "We've talked to many of our members about this many times and found that it's not a big issue for travel managers or their travelers, though NBTA of course recommends that important files be appropriately protected and backed up."