The Senate Judiciary Subcommittee on Constitution held a hearing on “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel.” Individuals innocent of any wrongdoing have increasingly been reporting that their laptops, smartphones and other electronic devices have been searched and seized by US Customs and Border Protection. The Washington Post reported in February:
The seizure of electronics at U.S. borders has prompted protests from travelers who say they now weigh the risk of traveling with sensitive or personal information on their laptops, cameras or cellphones. In some cases, companies have altered their policies to require employees to safeguard corporate secrets by clearing laptop hard drives before international travel.
At the Senate hearing, Subcommittee Chairman Sen. Russ Feingold summed up the situation succinctly: “Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicion-less searches of Americans’ laptops and similar devices go too far. Congress should not allow this gross violation of privacy.”
Various witnesses, including Susan Gurley, Executive Director of the Association of Corporate Travel Executives; Lee Tien, Senior Staff Attorney at the Electronic Frontier Foundation; and Peter P. Swire, Senior Fellow at the Center for American Progress, detailed the many privacy and civil liberty issues raised by suspicionless searches and seizures of electronic devices and data at the border.
Tien said that EFF agreed “the Fourth Amendment works differently at the border. But, ‘differently’ does not mean ‘not at all.’” EFF and the Asian Law Caucus have filed suit against the Department of Homeland Security (which oversees Customs and Border Protection) for denying access to public records on the questioning and searches of travelers and seizures of their property at U.S. borders.
The Asian Law Caucus said it “received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers’ books, business cards collected from friends and’colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, ‘This is the border, and you have no rights.'”
Tien also cautioned that government officials who did not have probable cause to get a warrant to search an individual’s laptop when he was in his own home could attempt to do an end-run around the warrant requirement by searching and seizing the individual’s laptop when he returned from an international trip. Such a search and seizure would have nothing to do with the border.
Subcommittee Ranking Member Sen. Sam Brownback argued that suspicionless searches were essential for national security. He and several witnesses noted that terrorists use laptops and other electronic devices, so Customs should have the right to search and every device in case there was terrorist or criminal information on them.
Swire pointed out that terrorists also know how to hide information using off-the-shelf encryption technology. Or they could simply upload their data to a server online and access the data after going through Customs.
Swire is correct. It is easy to hide data in any number of ways. The smart terrorists won’t get caught by Customs. The people who are and will be affected are law-abiding Americans and foreign visitors whose business data or digital cameras are searched and seized.
Have you been wrongfully questioned and searched? Contact us with your stories. Email: jph AT papersplease.org
Visit the hearing page for the written testimony of the witnesses.