What do Pascal Abidor, a graduate student and U.S.-French citizen, Bill Hogan, a freelance journalist and US citizen, and Maria Udy, a marketing executive and a UK citizen living and working in the Washington, DC area, have in common?
Have you seen them in the news?
They’re international travelers, who, while on US soil at the border, were detained, and had their laptop computers confiscated by US Customs and Border Protection (CBP) agents, without any apparent reasonable suspicion, or probable cause to search and seize their laptops.
They were caught in CBP’s “random inspection of electronic media.”
Mr. Abidor, didn’t have his laptop and external drive returned for several weeks. When they were returned, an examination of the devices showed his personal files, including letters between him and his girlfriend, photographs, and confidential information from interviews he had conducted as part of his thesis had all been copied and examined by CBP. The government has never accused Mr. Abidor of any wrongdoing.
Bill Hogan was luckier. He got his laptop back two weeks after it was seized, but Hogan was still understandably upset.
Ms. Udy wasn’t so lucky. Like Mr. Abidor and Mr. Hogan, she’s never been accused of wrong doing, but after more than two years, her computer hasn’t been returned, and she’s been unable to find out why.
I’ve been writing about this problem since 2008. Nothing at CBP has changed. No international traveler at the U.S. border, leaving or arriving, is safe from having their electronic devices (cell phones, MP3 players, digital cameras, memory devices, laptops) randomly confiscated without warrant or court order, by CBP, and without reasonable suspicion of wrong doing, or probable cause.
In the 21st century, many people keep a record of the most intimate details of their lives on their laptops, PDAs and cell phones. Some laptops have become de-facto electronic diaries. You can’t get more personal than that.
The preamble to the U.S. Constitution speaks about securing “the blessings of liberty to ourselves and our posterity.” CBP is indeed on the front lines working to secure our liberty. I’d just like to see them do that within the boundaries set forth in our Constitution and its amendments.
The parallels in the U.S. between today and the time leading to the American Revolution are intriguing. Ben Franklin understood the dilemma when he said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
CBP can’t secure our general liberty by taking essential liberties away from us, which in this writer’s opinion, they have done.
This past June, the American Civil Liberties Union (ACLU), under the Freedom of Information Act, requested detailed statistics, and information about the government’s policy of searching travelers’ laptops and other electronic devices at US border crossings without suspicion of wrongdoing.
What the ACLU found is that Mr. Abidor, Mr. Hogan, and Ms. Udy weren’t isolated cases. From October, 2008 through June 2010, more than 6,600 people, nearly half, U.S. citizens, traveling to or from the US, had their electronic devices searched, many of them seized, at the border.
Armed with that information, the ACLU filed suit last week, to declare CBP’s policies of electronics’ search and seizure, when they have no reason to believe a search would reveal wrongdoing, unconstitutional.
“The Fourth and First Amendments do not permit the government to rummage through a person’s laptop, cell phone or other electronic devices, or to detain these devices indefinitely without any suspicion just because a person is crossing the border.”
Long time legal precedents may or may not be on their side.
In United States v. Arnold the U.S. Court of Appeals for the Ninth Circuit, in 2008 stated, “Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” This decision follows the border search exception, first officially recognized by the Supreme Court in 1977.
In Arnold, the court did recognize that there could be limits on the government’s power, if it sacrificed a person’s dignity “without, at the bare minimum, some form of basic justification.”
The Electronic Frontier Foundation said this about Arnold,
“The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.”
While Arnold seemingly slammed the door shut on appealing laptop search and seizure policy, it did open the door for the ACLU case. The ACLU must convince the court that searching electronic devices is at its essence, the equivalent of a “body cavity” search, which requires at the least some reasonable suspicion. Clearly, the ACLU asserts that, that personal electronic equipment hold a person’s most important, valuable and often intimate personal records.
The National Press Photographers Association*, (NPPA) believes allowing “government officials unfettered ability to search journalists’ laptops and other electronic devices at the border has a chilling effect” on journalists’ ability to gather and disseminate news and raises additional First Amendment issues in the ACLU case they’ve joined.
If you are an international traveler, even if the only electronic device your carrying across the U.S. border is a smartphone, keep abreast of this case, because its outcome can very much affect your life.
The next time you travel internationally, your cell phone, MP3 player, camera or laptop may be searched and confiscated for an indeterminate period by CBP.
Security expert Bruce Schneier says your best defense is to clean your laptop. “A customs agent can’t read what you don’t have.” I agree.
I use the GoToMyPC.com service. While traveling, I connect to my office computer back in the US, using my laptop as a dumb terminal, with all my browsing, email, and word processing actually done back in the US. Everything is on the office computer, nothing on the laptop. I can’t loose what not there. Other than the photographs taken while traveling, I store nothing on my laptop.
If you don’t want to either connect to your computer remotely, or use cloud computing to store your information, at least consider deleting everything possible (history, cookies, email, data files, etc.) from your laptop before reentering the U.S.
* Ned Levi is a member in good standing of the National Press Photographers Association.