We've heard some scary stories, and we've wondered. We've had murky questions and dark suspicions, but we didn't really know anything.Now -- lucky us -- we have answers! We have clarity! We finally know what to expect in border inspections.
According to the government, border guards can seize any data storage medium, and copy any data -- from your laptop computers, cell phones, digital cameras, memory cards, iPods, portable disk drives and such, as well as from traditional analog media such as tapes, books, pamphlets and even handwritten notes. And they can do it for no reason, without any grounds for suspicion, without any hint that you might have done anything wrong.
We will all be comforted to have answers to longstanding questions.
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.So reported Ellen Nakashima for the Washington Post in an article published February 7, 2008.
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.
In that article, "Clarity Sought on Electronics Searches", Nakashima continued:
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.If Ellen Nakashima was asking for clarity about the rules then her request has been granted.
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.
There doesn't have to be any reason for a search or a seizure, according to policies which have apparently been in place for some time but which were formally disclosed last week, as Nakashima reported in Friday's piece, "Travelers' Laptops May Be Detained At Border".That piece starts like this:
Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.More from Nakashima's newest:
Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.
"The policies . . . are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.
DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.
The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and analyze information." This may take place "absent individualized suspicion."And there's the inevitable fair-and-balanced cross-section of American opinion, featuring one spokesman for the rule of law and two spokesmen for tyranny.
The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "
"They're saying they can rifle through all the information in a traveler's laptop without having a smidgen of evidence that the traveler is breaking the law," said Greg Nojeim, senior counsel at the Center for Democracy and Technology. Notably, he said, the policies "don't establish any criteria for whose computer can be searched."Chertoff also claims that
Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not infringe on Americans' privacy." In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.
Homeland Security Secretary Michael Chertoff wrote in an opinion piece published last month in USA Today that "the most dangerous contraband is often contained in laptop computers or other electronic devices." Searches have uncovered "violent jihadist materials" as well as images of child pornography, he wrote.
"... legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."But that's not nearly as dangerous or as chilling as having "law enforcement" working under no rules at all -- not to mention keeping the rules secret! And these rules have been secret forever. As Judith Blakley reported in November of 2006:
Can US Customs Search & Seize Your Laptop Computer Without Cause? YES They Can!
On July 24, 2006, the United States Court of Appeals for the Ninth Circuit decided that US Customs and Border Patrol Officers had the right to search and seize a person’s laptop computer, computer discs and other electronic media.Ryan Singel at Wired Blog Network aptly notes, in "Border Laptop Searches? No Reason Needed",
Nowhere has this information been broadcast. Millions of travelers know nothing about this ruling. Yet the word has begun to find its way out into public view. During the last week of October, 2006, an international conference of travel executives issued a warning, informing their members of this ruling and its implications. It was not until The Association of Corporate Travel Executives (ACTE) warned their members that under a new law, US Customs and Border Patrol Officers may search and seize a person’s laptop computer, computer discs and other electronic media when that person arrives in the US from abroad or departs from the US for a foreign country, that word finally got out.
Business travelers are advised to be cautious when carrying proprietary information in and out of the United States. According to ACTE, 86 percent of those surveyed said that the court’s decision to allow Officers to examine, download and/or seize the contents of their laptops would limit the kind of proprietary information they would normally store in their laptops.
Most ACTE members attending the conference in Spain had no prior knowledge of this new law.
What is surprising is the clarity of the policy and that it is actually public.Remember Maria Udy, whose laptop was taken in December of 2006? She's still waiting to get it back.
"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.And there you have it. Border guards can seize data storage devices of any kind, from laptops to handwritten notes, without any grounds. They are required to give seized items back to their owners in a reasonable time, but they get to decide what's reasonable. They can make copies of your data and share it with other government agencies, but if it turns out that you're not a terrorist they are supposed to destroy their copies of your data.
How would you ever know whether or not they had done so? And what would prevent them from secretly adding your data to the Main Core database?
Even more disturbingly, perhaps, this is the result of policies promulgated in secrecy, implemented without any publicity, and only now coming to light. Michael Chertoff says doing it any other way would be chilling and dangerous. And not a voice is raised in opposition -- at least not in the mainstream press.
You won't find any mention in the big media of how chilling and dangerous it is to be governed by secret laws enabling searches and seizures of private personal information and/or confidential business data -- not only without a warrant, but without any grounds at all; without even a hint of suspicion; just for the sake of "routine" inspection.
The America we sing about -- "the land of the free and the home of the brave" -- is now such a distant memory, it's hard to imagine it ever existed at all.
The America of Lincoln's phrase -- "government of the people, by the people, for the people" -- probably never existed either.
The Declaration of Independence famously declared that "all men are born equal, and endowed by their Creator with certain unalienable Rights", but it was talking about all property-owning white men, and their unalienable rights included the right to own other people.
It has always been a "government of the chattel, by the owners, for the owners."
We forget this at our peril.
And now, we carry data across international borders at our peril, too.