Civil liberties groups sue feds to get info on laptop searches by border agents

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Richmond, Rick (rrichmon@uwec.edu)
Fri, 8 Feb 2008 11:36:11 -0600



From: "Richmond, Rick" <rrichmon@uwec.edu>
Date: Fri, 8 Feb 2008 11:36:11 -0600
Subject: Civil liberties groups sue feds to get info on laptop searches by border agents
Message-ID: <7A17A445D0203848B157E8D70D1AC77E45EDAEF97F@CHERRYPEPSI.uwec.edu>

Civil liberties groups sue feds to get info on laptop searches by border ag ents By Jaikumar Vijayan, Computerworld Security February 7, 2008 (Computerworld)

Two civil liberties groups today filed a lawsuit in a federal court in Cali fornia in response to complaints from travelers of excessive screenings at border-entry points, including inspections of the data on laptops, cell pho nes and other electronic devices.

The lawsuit was filed in U.S. District Court in San Francisco by the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF). In the legal
 filing (download PDF), the two groups ask the court to order the U.S. Depa rtment of Homeland Security's Customs and Border Protection (CBP) division to release records relating to its policies and procedures on the "question ing, search and inspection" of travelers entering or returning to the U.S. at various ports of entry.

The ALC and the EFF, which are both based in San Francisco, said in a joint
 statement that they filed the suit under the Freedom of Information Act af ter the DHS didn't respond to a FOIA request the two groups submitted last October. They added that they had requested the information from the DHS in
 response to increasing allegations of "excessive or repeated" screenings b y CBP agents.

For instance, the ALC received more than 20 complaints over the past year f rom individuals who said they had been "grilled about their families, relig ious practices, volunteer activities, political beliefs, or associations" w hen returning to the U.S. from trips overseas, according to the statement.

Some of the people also claimed that CBP staffers inspected and sometimes c opied the contents of their laptop files and cell phone directories without
 providing any reason for doing so, the ALC and the EFF said. The groups ar e seeking the information about the screening policies so they can assess w hether they should take any legal or legislative actions to try to force th e CBP to change its procedures.

DHS officials referred an inquiry seeking comment about the lawsuit and the
 earlier FOIA request to the CBP's press office, which didn't immediately r eturn a phone call placed late in the afternoon Eastern time.

In an interview, Shirin Sinnar, a staff attorney at the ALC, said that in a ll the cases of electronic devices being inspected that the group knows of,
 the searches appear to have been done with little obvious cause and very l ittle explanation from the CBP.

"In one case, an individual told us his computer was taken for about 45 min utes," Sinnar said. "They told him that was how long it took to download th e files from his computer." Some people complained about CBP agents looking
 at their browser caches to see which Web sites they had visited recently, she added. Others said they weren't told what information, if any, was bein g copied and for what purpose.

One of the people who complained to the ALC was Kamran Habib, a software en gineer who lives in San Jose and works for a technology vendor that he aske d not be identified. Habib said he had been subject to such searches on thr ee occasions last year. Two of the searches took place in the space of two weeks, when Habib was re-entering the U.S. from Canada after separate busin ess trips.

On all three occasions, Habib said, CBP officials took his laptop and didn' t return it until the screening was completed -- a process that typically t ook about two hours. "They haven't informed me what they did [with the lapt op], so I really don't know," he said.

He added that when he asked why his computer was being inspected, CBP offic ials told him it was because they wanted to make sure the laptop didn't hav e any pirated content on it. Now, Habib said, he clears all of the personal
 information from his laptop before traveling outside of the U.S.

The FOIA request and lawsuit by the ALC and the EFF aren't the first attemp t to get the DHS to disclose its policies regarding such border searches. T he Association of Corporate Travel Executives (ACTE) filed a similar FOIA r equest last July, specifically looking for information about the government
's policies on searching laptops and other electronic devices. The DHS did respond to that request, but the document that the ACTE received was heavil y redacted.

The issue of searching electronic devices also has come up in at least two earlier legal cases. In July 2005, a laptop, compact disks and a memory sti ck belonging to an individual named Michael Arnold were searched by CBP off icials in the Los Angeles airport. That search led to Arnold's subsequent i ndictment on child pornography charges after the agents allegedly found ill egal images on his computer.

A federal judge in California later approved a motion by Arnold to suppress
 the evidence. The government appealed that ruling, but a U.S. Court of App eals panel agreed with the judge's ruling and held that CBP agents at a min imum need to have a reasonable suspicion for conducting such searches.

In that case, the ACTE and the EFF jointly filed a friend-of-the-court brie f asking the Court of Appeals to affirm the district court judge's ruling ( download PDF). They argued that searches of computers and electronic device s with no reasonable cause at the border "render meaningless the Fourth Ame ndment's prohibition against unreasonable searches and seizures."

They also claimed that by appealing the decision, the government was essent ially "seeking blanket authority to read, seize, and store" all of the info rmation that could be retrieved from the laptops of travelers entering the country. And they asserted that searching laptops was different from other types of searches because the systems often contain vast amounts of persona l information, including privileged legal communications, official document s and other confidential data.

However, in a similar case in 2006 involving child pornography images that were discovered during a laptop search by officials at the Seattle airport,
 the Court of Appeals in San Francisco upheld the conviction of an individu al named Stuart Romm. In that case, the court ruled that the search of Romm
's computer was indeed permissible and didn't require either probable cause
 or a warrant.

The decision (download PDF) noted that Romm had been sent to Seattle after being denied entry into Canada. Romm, who had pleaded nolo contendere to tw o child pornography charges in a previous case in Florida, was stopped for questioning at an airport in British Columbia by a border patrol agent who
"briefly examined" his laptop and found several child porn Web sites listed
 in its Internet history, the appeals court said.



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