Clarity Sought on Electronics Searches

U.S. Agents Seize Travelers’ Devices
By Ellen Nakashima
Washington Post Staff Writer
Thursday, February 7, 2008; Page A01

Nabila Mango, a therapist and a U.S. citizen who has lived in the country since
1965, had just flown in from Jordan last December when, she said, she was detained
at customs and her cellphone was taken from her purse. Her daughter, waiting
outside San Francisco International Airport, tried repeatedly to call her during
the hour and a half she was questioned. But after her phone was returned, Mango
saw that records of her daughter’s calls had been erased.

A few months earlier in the same airport, a tech engineer returning from a
business trip to London objected when a federal agent asked him to type his
password into his laptop computer. "This laptop doesn’t belong to me,"
he remembers protesting. "It belongs to my company." Eventually, he
agreed to log on and stood by as the officer copied the Web sites he had visited,
said the engineer, a U.S. citizen who spoke on the condition of anonymity for
fear of calling attention to himself.

Maria Udy, a marketing executive with a global travel management firm in Bethesda,
said her company laptop was seized by a federal agent as she was flying from
Dulles International Airport to London in December 2006. Udy, a British citizen,
said the agent told her he had "a security concern" with her. "I
was basically given the option of handing over my laptop or not getting on that
flight," she said.

The seizure of electronics at U.S. borders has prompted protests from travelers
who say they now weigh the risk of traveling with sensitive or personal information
on their laptops, cameras or cellphones. In some cases, companies have altered
their policies to require employees to safeguard corporate secrets by clearing
laptop hard drives before international travel.

Today, the Electronic Frontier Foundation and Asian Law Caucus, two civil liberties
groups in San Francisco, plan to file a lawsuit to force the government to disclose
its policies on border searches, including which rules govern the seizing and
copying of the contents of electronic devices. They also want to know the boundaries
for asking travelers about their political views, religious practices and other
activities potentially protected by the First Amendment. The question of whether
border agents have a right to search electronic devices at all without suspicion
of a crime is already under review in the federal courts.

The lawsuit was inspired by two dozen cases, 15 of which involved searches
of cellphones, laptops, MP3 players and other electronics. Almost all involved
travelers of Muslim, Middle Eastern or South Asian background, many of whom,
including Mango and the tech engineer, said they are concerned they were singled
out because of racial or religious profiling.

A U.S. Customs and Border Protection spokeswoman, Lynn Hollinger, said officers
do not engage in racial profiling "in any way, shape or form." She
said that "it is not CBP’s intent to subject travelers to unwarranted scrutiny"
and that a laptop may be seized if it contains information possibly tied to
terrorism, narcotics smuggling, child pornography or other criminal activity.

The reason for a search is not always made clear. The Association of Corporate
Travel Executives, which represents 2,500 business executives in the United
States and abroad, said it has tracked complaints from several members, including
Udy, whose laptops have been seized and their contents copied before usually
being returned days later, said Susan Gurley, executive director of ACTE. Gurley
said none of the travelers who have complained to the ACTE raised concerns about
racial or ethnic profiling. Gurley said none of the travelers were charged with
a crime.

"I was assured that my laptop would be given back to me in 10 or 15 days,"
said Udy, who continues to fly into and out of the United States. She said the
federal agent copied her log-on and password, and asked her to show him a recent
document and how she gains access to Microsoft Word. She was asked to pull up
her e-mail but could not because of lack of Internet access. With ACTE’s help,
she pressed for relief. More than a year later, Udy has received neither her
laptop nor an explanation.

ACTE last year filed a Freedom of Information Act request to press the government
for information on what happens to data seized from laptops and other electronic
devices. "Is it destroyed right then and there if the person is in fact
just a regular business traveler?" Gurley asked. "People are quite
concerned. They don’t want proprietary business information floating, not knowing
where it has landed or where it is going. It increases the anxiety level."

Udy has changed all her work passwords and no longer banks online. Her company,
Radius, has tightened its data policies so that traveling employees must access
company information remotely via an encrypted channel, and their laptops must
contain no company information.

At least two major global corporations, one American and one Dutch, have told
their executives not to carry confidential business material on laptops on overseas
trips, Gurley said. In Canada, one law firm has instructed its lawyers to travel
to the United States with "blank laptops" whose hard drives contain
no data. "We just access our information through the Internet," said
Lou Brzezinski, a partner at Blaney McMurtry, a major Toronto law firm. That
approach also holds risks, but "those are hacking risks as opposed to search
risks," he said.

The U.S. government has argued in a pending court case that its authority to
protect the country’s border extends to looking at information stored in electronic
devices such as laptops without any suspicion of a crime. In border searches,
it regards a laptop the same as a suitcase.

"It should not matter . . . whether documents and pictures are kept in
‘hard copy’ form in an executive’s briefcase or stored digitally in a computer.
The authority of customs officials to search the former should extend equally
to searches of the latter," the government argued in the child pornography
case being heard by a three-judge panel of the Court of Appeals for the 9th
Circuit in San Francisco.

As more and more people travel with laptops, BlackBerrys and cellphones, the
government’s laptop-equals-suitcase position is raising red flags.

"It’s one thing to say it’s reasonable for government agents to open your
luggage," said David D. Cole, a law professor at Georgetown University.
"It’s another thing to say it’s reasonable for them to read your mind and
everything you have thought 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. It’s as if you’re crossing the border
with your home in your suitcase."

If the government’s position on searches of electronic files is upheld, new
risks will confront anyone who crosses the border with a laptop or other device,
said Mark Rasch, a technology security expert with FTI Consulting and a former
federal prosecutor. "Your kid can be arrested because they can’t prove
the songs they downloaded to their iPod were legally downloaded," he said.
"Lawyers run the risk of exposing sensitive information about their client.
Trade secrets can be exposed to customs agents with no limit on what they can
do with it. Journalists can expose sources, all because they have the audacity
to cross an invisible line."

Hollinger said customs officers "are trained to protect confidential information."

Shirin Sinnar, a staff attorney with the Asian Law Caucus, said that by scrutinizing
the Web sites people search and the phone numbers they’ve stored on their cellphones,
"the government is going well beyond its traditional role of looking for
contraband and really is looking into the content of people’s thoughts and ideas
and their lawful political activities."

If conducted inside the country, such searches would require a warrant and
probable cause, legal experts said.

Customs sometimes singles out passengers for extensive questioning and searches
based on "information from various systems and specific techniques for
selecting passengers," including the Interagency Border Inspection System,
according to a statement on the CBP Web site. "CBP officers may, unfortunately,
inconvenience law-abiding citizens in order to detect those involved in illicit
activities," the statement said. But the factors agents use to single out
passengers are not transparent, and travelers generally have little access to
the data to see whether there are errors.

Although Customs said it does not profile by race or ethnicity, an officers’
training guide states that "it is permissible and indeed advisable to consider
an individual’s connections to countries that are associated with significant
terrorist activity."

"What’s the difference between that and targeting people because they
are Arab or Muslim?" Cole said, noting that the countries the government
focuses on are generally predominantly Arab or Muslim.

It is the lack of clarity about the rules that has confounded travelers and
raised concerns from groups such as the Asian Law Caucus, which said that as
a result, their lawyers cannot fully advise people how they may exercise their
rights during a border search. The lawsuit says a Freedom of Information Act
request was filed with Customs last fall but that no information has been received.

Kamran Habib, a software engineer with Cisco Systems, has had his laptop and
cellphone searched three times in the past year. Once, in San Francisco, an
officer "went through every number and text message on my cellphone and
took out my SIM card in the back," said Habib, a permanent U.S. resident.
"So now, every time I travel, I basically clean out my phone. It’s better
for me to keep my colleagues and friends safe than to get them on the list as
well."

Udy’s company, Radius, organizes business trips for 100,000 travelers a day,
from companies around the world. She says her firm supports strong security
measures. "Where we get angry is when we don’t know what they’re for."

Staff researcher Richard Drezen contributed to this report.

Source URL: http://www.washingtonpost.com/wp-dyn/content/article/2008/02/06/AR2008020604763.html