DHS and the Digital Strip-Search Dilemma

Amir Khan, an IT consultant from Fremont, Calif., and a U.S. citizen, has been subjected to U.S. Customs questioning for a total of more than 20 hours after returning to this country from a number of trips abroad, according to the San Francisco-based Asian Law Caucus. Customs officials have searched Khan’s laptop computer, books, personal notebooks and cell phone. Despite filing several complaints, he has never received an explanation for why he has repeatedly been singled out.

Recently, the ALC and the Electronic Frontier Foundation sued the U.S. Department of Homeland Security on behalf of Khan and others who reported similar experiences, for denying access to public records regarding questioning and searches of travelers at U.S. borders.

Last week, the Senate Subcommittee on the Constitution, Civil Rights and Property Rights, chaired by Sen. Russell D. Feingold, D-Wis., held hearings on the subject. Feingold expressed sympathy with the travelers who are made to endure random searches — searches that would require warrants in any other situation.

Uncle Sam Wants Your Computer

At issue are the criteria DHS uses to select travelers to search laptops, cell phones and other digital devices. Customs officials, both by law and by tradition, have always had the right to search through travelers’ belongings, including papers.

Indeed, Customs’ right to search and seizure at the border was recently reaffirmed by a 9th Circuit Court appellate decision that upheld the arrest of a man whose seized laptop contained child pornography on the hard drive.

Still, with the digital era, new concerns have arisen about the further erosion of privacy that these searches represent. Simply put, while a Customs agent has the right to look through somebody’s briefcase, such a search is not nearly as invasive as looking through someone’s e-mail account or cell phone call history.

“People keep their lives on these devices: diaries, personal mail, financial records, family photos. … The government should not be able to read this information,” said Lee Tien, senior staff attorney for the Electronic Frontier Foundation, told the subcommittee.

There has also been a growing chorus of complaints over Customs seizing laptops and holding them for weeks at a time. It is unclear what type of forensic analysis they put the devices through, but it is widely suspected that they copy hard drives. The seizures, in fact, may have been the last straw that provoked the Senate subcommittee to schedule a hearing.

Money for Nothing

It is difficult to say whether the hearing will translate into tangible legislative action, though, given Customs’ mandate, said Susan Ross, an attorney with Mitchell Silberberg & Knupp, whose practice focuses on customs, as well as international trade, import and export.

“I don’t know how Congress could fashion a bill that would circumvent the fact that Customs does not need probable cause for a search,” she told TechNewsWorld.

More than anything, she said, the hearing was likely an avenue for venting some of the frustration that has been building among travelers over the last several years.

In a Freedom of Information Act (FOIA) request, the Asian Law Caucus and EFF asked DHS to disclose its policies on questioning travelers about First Amendment-protected activities, photocopying individuals’ personal papers, and searching laptop computers and other electronic devices. The agency did not meet the deadline for the request, thus prompting the lawsuit.

There is a need for these criteria to be articulated, Ross said, but she recognizes that providing the information could also tip Customs’ hand as to how it enforces the law. Nevertheless, travelers’ angst and anger are on the rise.

“I have yet to see them justify why they need to hold onto a computer,” commented Ross. “These seizures have, to my knowledge, rarely resulted in arrests or convictions, and you have to wonder why the agency is using its limited resources on them.”

Tit for Tat

On top of the privacy issues, there is a real concern that Customs agencies in other countries will start mimicking the U.S.’s practices, John Nicholson, a senior associate in Pillsbury’s global sourcing group, told TechNewsWorld.

“Too many complaints, incidents like these [affecting] foreign citizens who come here, will invite retaliatory measures,” Nicholson said, noting that U.S. citizens are already being singled for more intrusive searches in some South American countries for just that reason.

Eventually, foreign customs agencies will start to seize laptops of U.S. businesspeople traveling overseas, with consequences potentially far more serious than inconvenience.

“In a lot of countries, industries and government collude on competitive information-sharing,” Nicholson pointed out. “Creating a legitimate reason for them to seize laptops is not a smart move.”

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