Clarity Sought on Electronics Searches U.S. Agents Seize Travelers' Devices

[Ed: This story comes days after this writer, returning to the U.S. from Asia, was detained by U.S. Customs for an hour and a half while they conducted an extensive search of my laptop and its hard drive, my digital camera and all the images from ten memory cards, as well as everything else in my suitcases and on my person. Throughout this, they asked very probing and intrusive questions ("Have you always been a bachelor? How come you've never married? Who did you associate with during your trip? Do you plan on traveling again soon?"). Needless to say, they found nothing. During that time I was not allowed to use my cell phone to let friends know that I was still stuck inside (they were waiting outside the terminal, wondering if I had missed the flight). The whole time, I wondered what my rights were and if I was truly obligated to answer all their questions. For the record, I'm a U.S. citizen. So just what is the penalty for not answering their questions and since when do they have the right to forbid me from telephoning? On what authority are they authorized to read all the documents in my computer, read private correspondence and copy all contact information for friends, clients and family?

It's important to note: I learned a long time ago not to take a defensive or challenging tone with these people. I answer every question and unzip every bag with the utmost politeness. While in Customs another fellow, a Pakistani, I think, who was being searched next to me, was caught bringing in 50 cartons of cigarettes. I asked the officer conducting my search offhandedly what the penalties for him would be. His answer? "It all depends on his attitude. If we don't like his attitude, then it'll be very expensive for him". I wonder what they would have made of Thomas Jefferson's attitude?]

By Ellen Nakashima
Washington Post Staff Writer
Thursday, February 7, 2008; A01

Nabila Mango, a therapist and a U.S. citizen who has lived in the country since 1965, had just flown in from Jordan last December when, she said, she was detained at customs and her cellphone was taken from her purse. Her daughter, waiting outside San Francisco International Airport, tried repeatedly to call her during the hour and a half she was questioned. But after her phone was returned, Mango saw that records of her daughter's calls had been erased.

A few months earlier in the same airport, a tech engineer returning from a business trip to London objected when a federal agent asked him to type his password into his laptop computer. "This laptop doesn't belong to me," he remembers protesting. "It belongs to my company." Eventually, he agreed to log on and stood by as the officer copied the Web sites he had visited, said the engineer, a U.S. citizen who spoke on the condition of anonymity for fear of calling attention to himself.

Maria Udy, a marketing executive with a global travel management firm in Bethesda, said her company laptop was seized by a federal agent as she was flying from Dulles International Airport to London in December 2006. Udy, a British citizen, said the agent told her he had "a security concern" with her. "I was basically given the option of handing over my laptop or not getting on that flight," she said.

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.

Today, the Electronic Frontier Foundation and Asian Law Caucus, two civil liberties groups in San Francisco, plan to file a lawsuit to force the government to disclose its policies on border searches, including which rules govern the seizing and copying of the contents of electronic devices. They also want to know the boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment. The question of whether border agents have a right to search electronic devices at all without suspicion of a crime is already under review in the federal courts.

The lawsuit was inspired by two dozen cases, 15 of which involved searches of cellphones, laptops, MP3 players and other electronics. Almost all involved travelers of Muslim, Middle Eastern or South Asian background, many of whom, including Mango and the tech engineer, said they are concerned they were singled out because of racial or religious profiling.

A U.S. Customs and Border Protection spokeswoman, Lynn Hollinger, said officers do not engage in racial profiling "in any way, shape or form." She said that "it is not CBP's intent to subject travelers to unwarranted scrutiny" and that a laptop may be seized if it contains information possibly tied to terrorism, narcotics smuggling, child pornography or other criminal activity.

The reason for a search is not always made clear. The Association of Corporate Travel Executives, which represents 2,500 business executives in the United States and abroad, said it has tracked complaints from several members, including Udy, whose laptops have been seized and their contents copied before usually being returned days later, said Susan Gurley, executive director of ACTE. Gurley said none of the travelers who have complained to the ACTE raised concerns about racial or ethnic profiling. Gurley said none of the travelers were charged with a crime.

"I was assured that my laptop would be given back to me in 10 or 15 days," said Udy, who continues to fly into and out of the United States. She said the federal agent copied her log-on and password, and asked her to show him a recent document and how she gains access to Microsoft Word. She was asked to pull up her e-mail but could not because of lack of Internet access. With ACTE's help, she pressed for relief. More than a year later, Udy has received neither her laptop nor an explanation.

ACTE last year filed a Freedom of Information Act request to press the government for information on what happens to data seized from laptops and other electronic devices. "Is it destroyed right then and there if the person is in fact just a regular business traveler?" Gurley asked. "People are quite concerned. They don't want proprietary business information floating, not knowing where it has landed or where it is going. It increases the anxiety level."

Udy has changed all her work passwords and no longer banks online. Her company, Radius, has tightened its data policies so that traveling employees must access company information remotely via an encrypted channel, and their laptops must contain no company information.

At least two major global corporations, one American and one Dutch, have told their executives not to carry confidential business material on laptops on overseas trips, Gurley said. In Canada, one law firm has instructed its lawyers to travel to the United States with "blank laptops" whose hard drives contain no data. "We just access our information through the Internet," said Lou Brzezinski, a partner at Blaney McMurtry, a major Toronto law firm. That approach also holds risks, but "those are hacking risks as opposed to search risks," he said.

The U.S. government has argued in a pending court case that its authority to protect the country's border extends to looking at information stored in electronic devices such as laptops without any suspicion of a crime. In border searches, it regards a laptop the same as a suitcase.

"It should not matter . . . whether documents and pictures are kept in 'hard copy' form in an executive's briefcase or stored digitally in a computer. The authority of customs officials to search the former should extend equally to searches of the latter," the government argued in the child pornography case being heard by a three-judge panel of the Court of Appeals for the 9th Circuit in San Francisco.

As more and more people travel with laptops, BlackBerrys and cellphones, the government's laptop-equals-suitcase position is raising red flags.

"It's one thing to say it's reasonable for government agents to open your luggage," said David D. Cole, a law professor at Georgetown University. "It's another thing to say it's reasonable for them to read your mind and everything you have thought over the last year. What a laptop records is as personal as a diary but much more extensive. It records every Web site you have searched. Every e-mail you have sent. It's as if you're crossing the border with your home in your suitcase."

If the government's position on searches of electronic files is upheld, new risks will confront anyone who crosses the border with a laptop or other device, said Mark Rasch, a technology security expert with FTI Consulting and a former federal prosecutor. "Your kid can be arrested because they can't prove the songs they downloaded to their iPod were legally downloaded," he said. "Lawyers run the risk of exposing sensitive information about their client. Trade secrets can be exposed to customs agents with no limit on what they can do with it. Journalists can expose sources, all because they have the audacity to cross an invisible line."

Hollinger said customs officers "are trained to protect confidential information."

Shirin Sinnar, a staff attorney with the Asian Law Caucus, said that by scrutinizing the Web sites people search and the phone numbers they've stored on their cellphones, "the government is going well beyond its traditional role of looking for contraband and really is looking into the content of people's thoughts and ideas and their lawful political activities."

If conducted inside the country, such searches would require a warrant and probable cause, legal experts said.

Customs sometimes singles out passengers for extensive questioning and searches based on "information from various systems and specific techniques for selecting passengers," including the Interagency Border Inspection System, according to a statement on the CBP Web site. "CBP officers may, unfortunately, inconvenience law-abiding citizens in order to detect those involved in illicit activities," the statement said. But the factors agents use to single out passengers are not transparent, and travelers generally have little access to the data to see whether there are errors.

Although Customs said it does not profile by race or ethnicity, an officers' training guide states that "it is permissible and indeed advisable to consider an individual's connections to countries that are associated with significant terrorist activity."

"What's the difference between that and targeting people because they are Arab or Muslim?" Cole said, noting that the countries the government focuses on are generally predominantly Arab or Muslim.

It is the lack of clarity about the rules that has confounded travelers and raised concerns from groups such as the Asian Law Caucus, which said that as a result, their lawyers cannot fully advise people how they may exercise their rights during a border search. The lawsuit says a Freedom of Information Act request was filed with Customs last fall but that no information has been received.

Kamran Habib, a software engineer with Cisco Systems, has had his laptop and cellphone searched three times in the past year. Once, in San Francisco, an officer "went through every number and text message on my cellphone and took out my SIM card in the back," said Habib, a permanent U.S. resident. "So now, every time I travel, I basically clean out my phone. It's better for me to keep my colleagues and friends safe than to get them on the list as well."

Udy's company, Radius, organizes business trips for 100,000 travelers a day, from companies around the world. She says her firm supports strong security measures. "Where we get angry is when we don't know what they're for."

Staff researcher Richard Drezen contributed to this report.

Jessica's Law hits enforcement roadblocks

Interpreting residence rules, finding financing difficult

The realities of Jessica's Law have hit home for a Gonzales man convicted of sexual battery against his ex-girlfriend at Hartnell College. The case demonstrates some of the difficult issues confronting local authorities over application of the law. Passed by 70 percent of voters in November 2006, Jessica's Law requires lifetime electronic monitoring of sex offenders paroled from prison and prohibits all registered sex offenders — even those never sent to prison — from living within 2,000 feet of a "school or park where children regularly gather."

For an increasing number of sex offenders in the state, that means registering with law enforcement as a "transient" because there is no place for them to live legally, especially in urban areas.

For 22-year-old Samuel Almanzar, it means leaving the Gonzales home where he was raised and which his family has owned since 1953. His single mother, recently diagnosed with a serious heart ailment, must decide whether to sell her parents' home or send her son away.

"I would be hard pushed to think of (a location within city limits that complies) under these restrictions," said Marcia Parsons, deputy chief probation officer for Monterey County. "There are a lot of issues with Jessica's Law that really, really need to be ironed out."

Money needed for monitoring

Powers said, local law enforcement and probation departments were "extremely alarmed" that once offenders complete terms of release and are no longer supervised by state parole officers, "by default, 'We're going to have to go and supervise for life all registered sex offenders.'"

Local authorities wanted to know where the funds would come from to cover the costs of equipment and personnel.

Sen. George Runner said Almanzar's biggest problem isn't going to be finding a home. "The biggest challenge for him is people can look up his name and address on any computer and see he's a registered sex offender," the senator said.

Public notoriety is low on the list of worries for an increasing number of sex offenders who have been forced to register as transients and take to the streets when they are unable to find compliant housing.

The Oakland Tribune profiled an East Bay man with a wife and three children who lived in the family's apartment during the day but wandered the streets and slept on bus-stop benches at night to comply with residency requirements.

Defense lawyer Bengston questioned the logic of forcing sex offenders into rural areas or homelessness, where it's more difficult to watch them. And statistically, she added, "The residency requirement really doesn't seem to have anything to do with keeping children safer. There is no nexus between living near a park or school and molesting a child."

Ed Freeman, district administrator of the state parole department's Central Coast division, agreed.
"There's a perception that most of the child molesters are this individual who cruises the street and snatches a kid out of a bus stop, and that's just not the case," he said. "Most are coaches, teachers, uncles, stepfathers for sure, that know the child. The number of predatory individuals is probably less than 5 percent.

"When you pass a law like that and drum up the fear of the public, you're only getting half-truths out there," he added. "People go out to the polls and pull their ballot form and they're not well informed."
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