TRAVELERS' LAPTOPS MAY BE DETAINED AT BORDER
by Ellen Nakashima

Washington Post
August 1, 2008

WASHINGTON - Federal agents may take a traveler's laptop computer or
other electronic device to an off-site location for an unspecified
period of time without any suspicion of wrongdoing, as part of border
search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with
other agencies and private entities for language translation, data
decryption or other reasons, according to the policies, dated July
16 and issued by two DHS agencies, U.S. Customs and Border Protection
and U.S. Immigration and Customs Enforcement.

"The policies . . . are truly alarming," said Sen. Russell Feingold
(D-Wis.), who is probing the government's border search practices. He
said he intends to introduce legislation soon that would require
reasonable suspicion for border searches, as well as prohibit profiling
on race, religion or national origin.

DHS officials said the newly disclosed policies â€" which apply
to anyone entering the country, including U.S. citizens â€" are
reasonable and necessary to prevent terrorism. Officials said such
procedures have long been in place but were disclosed last month
because of public interest in the matter.

Civil liberties and business travel20groups have pressed the government
to disclose its procedures as an increasing number of international
travelers have reported that their laptops, cellphones and other
digital devices had been taken â€" for months, in at least one case
â€" and their contents examined.

The policies state that officers may "detain" laptops "for a reasonable
period of time" to "review and analyze information." This may take
place "absent individualized suspicion."

The policies cover "any device capable of storing information
in digital or analog form," including hard drives, flash drives,
cellphones, iPods, pagers, beepers, and video and audio tapes. They
also cover "all papers and other written documentation," including
books, pamphlets and "written materials commonly referred to as
'pocket trash' or 'pocket litter.' "

Reasonable measures must be taken to protect business information and
attorney-client privileged material, the policies say, but there is
no specific mention of the handling of personal data such as medical
and financial records.

When a review is completed and no probable cause exists to keep the
information, any copies of the data must be destroyed. Copies sent
to non-federal entities must be returned to DHS. But the documents
specify that there is no limitation on authorities keeping written
notes or reports about the materials.

"They're saying they can rifle through all the information in a
traveler's laptop without having a smidgen of evidence that the
traveler is breaking the law," said Greg Nojeim, senior counsel at the
Center for Democracy and Technology. Notably, he said, the policies
"don't establish any criteria for whose computer can be searched."

Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not
infringe on Americans' privacy." In a statement submitted to Feingold
for a June hearing on the issue, he noted that the executive branch has
long had "plenary authority to conduct routine searches and seizures
at the border without probable cause or a warrant" to prevent drugs
and other contraband from entering the country.

Homeland Security Secretary Michael Chertoff wrote in an opinion
piece published last month in USA Today that "the most dangerous
contraband is often contained in laptop computers or other electronic
devices." Searches have uncovered "violent jihadist materials" as
well as images of child pornography, he wrote.

With about 400 million travelers entering the country each year,
"as a practical matter, travelers only go to secondary [for a
more thorough examination] when there is some level of suspicion,"
Chertoff wrote. "Yet legislation locking in a particular standard
for searches would have a dangerous, chilling effect as officers'
often split-second assessments are second-guessed."

In April, the U.S. Court of Appeals for the 9th Circuit
in San Francisco upheld the government's power to conduct
searches of an international traveler's laptop without
suspicion of wrongdoing. The Customs policy can be viewed at:
http://www.cbp.gov/linkhandler/cgov/travel/admissability/search_authority.ctt/search_authority.pdf.