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.