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From the Summer 2008 issue of The News Media & The Law, page 14. When customs agents seized freelance journalist…

From the Summer 2008 issue of The News Media & The Law, page 14.

When customs agents seized freelance journalist Bill Hogan’s laptop earlier this year and searched his digital camera, he was livid.

“Particularly that they knew I was a reporter,” he said. “They did not seem to give a rat’s patootie.”

It turns out Hogan’s wasn’t a unique experience. Business travelers, Muslim groups and privacy specialists are bristling over what government officials call “routine border searches,” in which customs authorities select travelers at U.S. borders and search their electronics.

On June 25, the Senate Judiciary Subcommittee on the Constitution conducted a hearing on the issue. Presiding Sens. Russell Feingold (D-Wisc.) and Sam Brownback (R-Kan.) heard a host of civil libertarian concerns and several staunch defenses of the practice, mainly on the grounds of national security.

Hogan said that when his computer was searched, he’d been in the midst of a story using confidential sources in Iraq whose families had been threatened. By a stroke of luck, their personal information was not stored on his computer when agents seized it and kept it “between 10 days and two weeks,” he said.

“Otherwise, I might have had to call those sources and tell them their identities had been compromised because the government had their information,” he said.

While the seizure of his computer did not cause as much damage as it could have, Hogan was left without a laptop for two weeks.

“Where was my information? How long would it be there?” he recalled wanting to know.

Customs agents gave Hogan vague, unhelpful answers, he said. They handed him a receipt in exchange for his laptop. On the line where a reason for the search was supposed to be written, Hogan found nothing.


DHS responds, mostly with silence

To answer questions like Hogan’s, the Electronic Frontier Foundation (EFF) and the Asian Law Caucus filed Freedom of Information Act requests with the Department of Homeland Security in 2007, seeking “records concerning policies and procedures on the questioning, search, and inspection of travelers entering or returning to the United States at ports of entry.”

The agency has not yet complied with these requests, despite a federal court in the Northern District of California finding in February that the agency had no legal basis to withhold the records.

At the Senate subcommittee hearing in June, DHS did not send a representative, although Feingold said he invited the agency and was “extremely disappointed” when no one showed.

Reading into the agency’s absence, the senator said: “Once again, this administration has demonstrated its perverse belief that it is entitled to keep anything and everything secret from the public it serves and their elected representatives, while Americans are not allowed to keep any secrets from their government.”

DHS did submit a written statement by Jayson P. Ahern, deputy commissioner for U.S. Customs and Border Protection. Ahern wrote that the agency’s practices “do not infringe on Americans’ privacy.”

Besides, he argued, the searches and seizures have been upheld by the courts.


Is a laptop a container or an extension of the human body?

Indeed, the Ninth Circuit recently upheld laptop searches in United States v. Arnold, the case of a California man convicted of possessing child pornography after a border search of his laptop. But the underlying legal argument may not be rock-solid.

The EFF and the Association of Corporate Travel Executives filed a motion in June asking the Ninth Circuit to reverse its decision upholding “blanket search and seizure power.”

The controversy comes down to this: Either a laptop is analogous to a suitcase, which border officials can rifle through without any prior suspicion, or it’s much more complex.

The law recognizes as more than just a container any virtual extension of a person’s brain or home or, more vividly, a metaphoric body cavity. At borders, body cavities are subject to a higher standard for legal search—that of reasonable suspicion.

The Ninth Circuit in Arnold said a laptop was more similar to luggage and its contents. The circuit reasoned that while the Fourth Amendment typically requires reasonable suspicion and a warrant before the government can search, courts have carved out a border-search exception.

That exception originated in the 1977 case United States v. Ramsey, in which the U.S. Supreme Court approved a customs official’s search of suspicious envelopes, which contained heroin, even though the officer did not first meet the stringent Fourth Amendment requirements for search.

However, the district court in Arnold held that searching a laptop was just as intrusive as a strip or body cavity search and similarly required reasonable suspicion.

If the Ninth Circuit’s decision in Arnold were overturned, it would create a split with the Fourth Circuit, which has also held, in United States v. Ickes, that there’s nothing special about a laptop. In fact, the Fourth Circuit has gone so far as to hold that finding a First Amendment exception to the search of expressive materials would empower terrorists.

“Particularly in today’s world,” Judge Gregory Wilkinson wrote for the court, “national security interests may require uncovering terrorist communications, which are inherently ‘expressive.’”


Policy, terrorism and child pornography

Ahern, writing for DHS, and other advocates of the policy who testified before the Senate subcommittee said laptop searches could prove a vital net for catching terrorists.

It was a planned border search that led to the 2004 arrest of Xuedong Sheldon Meng, a man who stole proprietary software programs from a U.S. company and attempted to sell the software to China, according to Ahern’s testimony.

But the DHS official did not clarify in his written testimony how that case, dealing with a planned search, bears on random searches done without prior suspicion.

In fact, Susan Gurley, the executive director of ACTE, testified, it’s not even clear that searches of the sort Hogan experienced are random and done without prior suspicion, since the DHS has yet to provide any clear explanation of its policies to the Senate or comply with FOIA requests.

Perhaps the government is using racial profiling to target certain travelers, said Farhana Y. Khera, president and executive director of Muslim Advocates.

In written testimony, she asked if the government considers a traveler’s appearance or nature of travel. “Is the country from which someone has traveled a proxy for religion or ethnicity?” Khera wrote.

Muslim Advocates was the only organization at the hearing to produce evidence of constituents who had been searched more than once. In Khera’s testimony, she presented anecdotes from her constituents, some of whom were subject to racial and religious questioning not reported by other organizations.

For example, when a San Francisco-area software engineer offered to give a customs agent his wife’s phone number so the agent could verify his identity, the customs agent asked, “Isn’t it rude in Islamic culture to give a man a woman’s phone number?”

Another Muslim, who traveled abroad to pursue graduate studies, reported multiple searches of his laptop, flash drives and CDs, which were taken to a back room and, he presumed, copied. Customs agents also asked about his religious practices and beliefs and challenged his choice of religion during a border search.

Ahern addressed accusations of racial profiling in his brief, saying that U.S. citizens are not treated differently based on ethnicity, but that their “physical description could be a basis for singling them out.”

Whatever the potential for laptop searches to catch terrorism suspects, the 11 criminal cases so far addressing them have all centered on child pornography, said Nathan Sales, who previously served as a senior counsel in the Department of Justice’s Office of Legal Policy. He also helped draft the USA PATRIOT Act.

Assuming a laptop is like a container, Sales argued that although the Constitution does not provide very strong privacy protection at the border, policymakers at DHS might consider implementing safeguards beyond what the Fourth Amendment requires.

He recommended formalizing the standards used to pick travelers for searches, providing the public with as much information as possible and considering limits on the length of time it takes to complete a laptop search.

All this, he said, should be carefully balanced against revealing too much to the public, which “could provide terrorists, child pornographers and other criminals with a roadmap for avoiding detection.”


Avoiding detection

But as it turns out, criminals and sophisticated businesspeople alike are already taking steps to evade laptop searches, said Peter Swire, former chief counselor for privacy in the U.S. Office of Management and Budget. By sending encrypted files to oneself after arriving in a foreign country, he said, a person can travel without incriminating files but still get them across the border.

“Any terrorist who is even moderately well-informed can learn to send the crucial files legally and safely across the border,” he stated in written testimony. One can buy software, called TrueCrypt, that allows users to encrypt a secret cache of data inside a hard drive. When customs officials open the hard drive, the secret data is invisible to investigators.

In fact, Swire said, some of the people most likely to be able to afford and know how to use such technologies are criminals.

ACTE advises its constituents to purchase special laptops to use only for international travel in order to protect against government intrusion into financial or confidential client information.

As for Hogan, he said he will never “travel the way I did again” without first taking steps to protect his camera memory card, lists of sources and unpublished work. He recommends journalists not travel internationally with sensitive data stored on laptops, thumb drives or cell phones.