U.S. Agents Seize Travelers' Devices

[Zeno Swijtink]

https://www.washingtonpost.com/wp-dy...604763_pf.html

U.S. Agents Seize Travelers' Devices
ELLEN NAKASHIMA, Staff Writer - Washington Post

Is this the American you want?

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."

[Zeno Swijtink]

https://www.nytimes.com/2008/01/07/us/07bar.html

January 7, 2008
SIDEBAR
If Your Hard Drive Could Testify ...
By ADAM LIPTAK

A couple of years ago, Michael T. Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called “Kodak pictures” and “Kodak memories,” the officer found child pornography.

The search was not unusual: the government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer’s hard drive, the government says, is no different than looking through a suitcase.

One federal appeals court has agreed, and a second seems ready to follow suit.

There is one lonely voice on the other side. In 2006, Judge Dean D. Pregerson of Federal District Court in Los Angeles suppressed the evidence against Mr. Arnold.

“Electronic storage devices function as an extension of our own memory,” Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. “They are capable of storing our thoughts, ranging from the most whimsical to the most profound.”

Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and — the clincher, of course — information about reporters’ “confidential sources and story leads.”

But Judge Pregerson’s decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., took that position in a 2005 decision. It upheld the conviction of John W. Ickes Jr., who crossed the Canadian border with a computer containing child pornography. A customs agent’s suspicions were raised, the court’s decision said, “after discovering a video camera containing a tape of a tennis match which focused excessively on a young ball boy.”

It is true that the government should have great leeway in searching physical objects at the border. But the law requires a little more — a “reasonable suspicion” — when the search is especially invasive, as when the human body is involved.

Searching a computer, said Jennifer M. Chacón, a law professor at the University of California, Davis, “is fairly intrusive.” Like searches of the body, she said, such “an invasive search should require reasonable suspicion.”

An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government’s ability to acquire information.

“Under the government’s reasoning,” the brief said, “border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign.” That is, the brief said, “simply electronic surveillance after the fact.”

The government went even further in the case of Sebastien Boucher, a Canadian who lives in New Hampshire. Mr. Boucher crossed the Canadian border by car about a year ago, and a customs agent noticed a laptop in the back seat.

Asked whether he had child pornography on his laptop, Mr. Boucher said he was not sure. He said he downloaded a lot of pornography but deleted child pornography when he found it.

Some of the files on Mr. Boucher’s computer were encrypted using a program called Pretty Good Privacy, and Mr. Boucher helped the agent look at them, apparently by entering an encryption code. The agent said he saw lots of revolting pornography involving children.

The government seized the laptop. But when it tried to open the encrypted files again, it could not. A grand jury instructed Mr. Boucher to provide the password.

But a federal magistrate judge quashed that subpoena in November, saying that requiring Mr. Boucher to provide it would violate his Fifth Amendment right against self-incrimination. Last week, the government appealed.

The magistrate judge, Jerome J. Niedermeier of Federal District Court in Burlington, Vt., used an analogy from Supreme Court precedent. It is one thing to require a defendant to surrender a key to a safe and another to make him reveal its combination.

The government can make you provide samples of your blood, handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you, Judge Niedermeier said.

“The core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt,” Michael Froomkin, a law professor at the University of Miami, wrote about the Boucher case on his Discourse.net blog.

But Orin S. Kerr, a law professor at the George Washington University, said Judge Niedermeier had probably gotten it wrong. “In a normal case,” Professor Kerr said in an interview, “there would be a privilege.” But given what Mr. Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.

There are all sorts of lessons in these cases. One is that the border seems be a privacy-free zone. A second is that encryption programs work. A third is that you should keep your password to yourself. And the most important, as my wife keeps telling me, is that you should leave your laptop at home.

Beginning Jan. 15, Adam Liptak’s column will appear on Tuesdays. Online: Documents and an archive of articles: nytimes.com/adamliptak.