By Jaikumar Vijayan | Privacy and civil rights groups are welcoming legislation that proposes tough new standards for conducting searches of laptops and other electronic devices at U.S. borders.
The legislation, called the Travelers’ Privacy Protection Act of 2008 , was introduced last week by U.S. Sens. Russ Feingold (D-Wis.) and Maria Cantwell (D-Wash.), and U.S. Rep. Adam Smith, (D-Wash.).
The bill is aimed at curbing the controversial practice by U.S. Department of Homeland Security (DHS) officials of conducting searches, without apparent reason, of laptops, cell phones, storage devices and other electronic items belonging to travelers arriving at U.S. borders.
The Feingold bill, though a long way from becoming law, has the support of the American Civil Liberties Union and the Association of Corporate Travel Executives (ACTE), both of which have been strongly opposed to the DHS border searches.
Feingold, in a statement, said the bill was introduced in response to a DHS policy announced July 16 that allows customs agents at U.S. borders to seize laptops from travelers without giving a reason. The DHS policy allows agents to retain seized laptops for an unspecified period while the contents are searched and analyzed even if there was no individualized suspicion to trigger the search.
The DHS has argued that it needs the ability to conduct such searches to ensure border security. In the few instances where the issue has gone to court, the decisions have tended to favor the DHS’ view. In April, for instance, the U.S Court of Appeals for the Ninth Circuit held that customs officers need no reasonable suspicion to search through the contents of an individual’s laptop at the country’s borders.
In arriving at its decision, the court noted that searches of closed containers, such as briefcases and wallets, have long been allowed at U.S. borders and concluded that computers were no different from such containers. Similarly, the Fourth Circuit Court of Appeals also upheld the validity of the warrant-less searches at U.S. borders saying that requiring warrants would impose an “unworkable standard” on border agents.
Announcing his bill last week, Feingold noted that most Americans would likely be “shocked” to know that the contents of their laptops, including personal documents, e-mails, photographs and browsing histories, would be liable to such searches without cause. The bill would bring the government’s border search practices “back in line with the reasonable expectations of law-abiding Americans,” he said.
Feingold’s bill spells out standards for search and seizures of electronic equipment belonging to U.S. travelers at airports and other borders. The biggest condition is that such searches may be initiated only if the customs agent has “reasonable suspicion” that the traveler is carrying contraband or items otherwise prohibited in the country, or because the traveler is prohibited from entering the U.S. The equipment may be seized only if the DHS secretary, or a relevant federal or state law enforcement agency, obtains a probable-cause warrant on the belief that the equipment contains information that either violates a law, provides evidence of illegal activity or is foreign intelligence material.
The bill also spells out specific procedures to be followed during such searches, including the need for supervisory approval and the specific nature and basis for the suspicion. It would require customs agents to allow the traveler to be present when the search is conducted and mandates that such searches must be done by a minimum of two customs agents at all times. The bill would also restrict the search to only the specific documents, files or other storage media that could reasonably contain the information that triggered the search. It would also require customs agents to maintain complete records of all such searches.
The bill also lists similar requirements for all such seizures.
In a statement last week, the ACLU‘s Washington office said the bill will ensure that individual privacy rights as well as national security interests are protected. The statement noted that laptops, cell phones and other electronic devices that store personal information can’t be breached “under the guise of border security.”
In an interview with Computerworld, Timothy Sparapani, the ACLU’s senior legislative counsel, said the bill was “critically important” to curbing the warrantless searches.
“The customs and border protection division is acting as if the border was some sort of lawless Wild West zone that is only theirs to police with laws they have written and only they can enforce,” Sparpani said. “Nothing can be further from the truth.”
Marc Rotenberg, executive director of the Washington-based Electronic Privacy Information Center, said Feingold’s proposal deals “with a real problem.”
“The view of the DHS is that it has the right to search a laptop without any indication of probable cause or criminal conduct. That is authority that really needs to be regulated by someone,” he said.
The ACTE noted that the bill introduces a “much higher and necessary” standard for laptop searches at U.S. borders.
The bill seeks to ensure that such searches are subject to a formal judicial process by requiring the DHS to obtain warrants beforehand, the ACTE statement noted. “It puts an end to the indiscriminate ransacking of data. It allows the traveler to witness the process, and it limits the time officials can hold a traveler’s hardware,” ACTE Executive Director Susan Gurley said in the statement.
Feingold’s proposal comes at a time of growing concern over the searches of laptops and electronic devices at U.S. borders. There are no hard numbers available for the searches that the DHS has conducted of traveler’s laptops and electronic devices at U.S. borders. While the agency has contended the instances of such searches are few and far between, groups such as the ACTE and ACLU claim that they have been increasing sharply both in number and scope.
Groups such as the ACTE and the Electronic Frontier Foundation have warned travelers that such searches could result in personal and business data being breached.