Laptops at U.S. border: No privacy rights

[Marc]

From the International Herald Tribune:

Originally Posted by IHT

A lot of business travelers are walking around with laptops that contain private corporate information that their employers really do not want outsiders to see.

Until recently, their biggest concern was that someone might steal the laptop. But now there's a new worry: the laptop will be seized or its contents scrutinized at customs and immigration checkpoints upon entering the United States.

Although much of the evidence for the confiscations remains anecdotal, it is a hot topic this week among more than a thousand corporate travel managers and travel industry officials meeting in Barcelona at a conference of the Association of Corporate Travel Executives.

Last week, an informal survey by the association, which has about 2,500 members worldwide, indicated that almost 90 percent of its members were not aware that U.S. customs officials have the authority to scrutinize the contents of travelers' laptops and even confiscate them for a period of time, without giving a reason. Appeals are under way in some confiscation cases, but the law is clear.

"They don't need probable cause to perform these searches under the current law," said Tim Kane, a Washington lawyer who is researching the matter for corporate clients. "They can do it without suspicion or without really revealing their motivations."

Laptops may be scrutinized and subject to a "forensic analysis" under the so-called border search exemption, which allows searches of people entering the United States and their possessions "without probable cause, reasonable suspicion or a warrant," a U.S. court ruled in July.

The association is asking the U.S. government for better guidelines so corporate policies on traveling with proprietary information can be re-evaluated. It is also asking whether corporations need to reduce the proprietary data that travelers carry.

"We need to be able to better inform our business travelers what the processes are if their laptops and data are seized - what happens to it, how do you get it back," said Susan Gurley, the group's executive director.

Besides the possibility for misuse of proprietary information, travel executives are also concerned that a seized computer, and the information it holds, becomes unavailable for a time. A remedy some companies are considering is having travelers encrypt critical information and e-mail it to themselves before entering the country, protecting access to the data, if not privacy.

A U.S. court in California recently went against the trend, ruling that laptop searches were a serious invasion of privacy.

"People keep all sorts of personal information on computers," the court said, citing diaries, personal letters, financial records, lawyers' confidential client information and reporters' notes on confidential sources. In that specific case, the federal court ruled that "the correct standard requires that any border search of the information stored on a person's electronic storage device be based, at a minimum, on a reasonable suspicion."

In its informal survey, the association also found that 87 percent of its members said they would be less likely to carry confidential business or personal information on international trips now that they were aware of how easily laptop contents could be searched.

[Bob Schiller]

Welcome to the new world of travel, this has been going on for some time. My laptop was was opened and searched the fist time prior to 9-11 at the Mexico -Texas border.
Also I now have had both knees replaced, I carry medical documentation attesting to this: However I am always told to go through the normal screening, of course I always fail, then go for the full body scan and pat down. My question has been: Why send me through when we all know I'm going to set-off all the alarms??
Bob Schiller

[tomvehoski]

The article is refering to US Customs which can search pretty much anything they want when you are entering the US. This is completly different than the TSA screening to enter the sterile area of an airport.

While I agree there is much about airport security that does not make sense, I could see many possibilities why they make you go through the normal process. First, if the walk thru metal detector alarms (WTMD), the screener can "see" where on your body the alarm is with a readout on the machine. You could tell them it is your knee, but if the scanner shows your upper body, something else is there. Second, they don't know that you are a frequent traveler and not all WTMDs will alarm with all implants. They might be trying to speed up your screening if you don't alarm. Third, it is probably easiest to physically move you through the WTMD to get to the hand screening area. Fourth, they have rules and procedures to follow - it does not matter if they make sense or not. If they start making exceptions it will become a bigger mess.

On the laptop side, I don't see a big issue. It has always been the case that they can search your laptop. How many instances of secrets being leaked can be traced to a customs inspection? Is a customs inspector really going to decipher that schematic for the next super gizmo and beat you to market with it?

[Jim Wynne]

Originally Posted by tomvehoski

On the laptop side, I don't see a big issue. It has always been the case that they can search your laptop. How many instances of secrets being leaked can be traced to a customs inspection? Is a customs inspector really going to decipher that schematic for the next super gizmo and beat you to market with it?

The issue isn't searching a computer, per se, but the fact that Customs can search and seize without probable cause. I seem to remember some obscure document called the Constitution, and something in it called the Fourth Amendment that says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[tomvehoski]

From http://supreme.lp.findlaw.com/consti...nt04/04.html#2

Border Searches.--''That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.''87 Authorized by the First Congress,88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis,90 Terry protections as to the length and intrusiveness of the search do not apply.91

[Jim Wynne]

"... prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis..."

This requirement is not modified by the "length and intrusiveness" exemption. In other words, it says that "reasonable suspicion" (i.e., probable cause) is necessary, but once probable cause is established, all bets are off.

[Wes Bucey]

From a simple-mind (mine) point of view, many folks are willing to give up rights for what they perceive as the greater good. Hence, a bureaucrat or politician raises the spectre some pervert may enter this country with porn (Hello! Anyone ever hear of internet?) or a terrorist may enter with plans to build a "dirty" bomb (same Hello!) and the good citizen says, "Since I have nothing to hide, nobody should be allowed to have a secret."

If I were a suspicious customs agent, merely having a lot of data protected by encryption might trigger me to seize an encrypted computer. Yep. We can lock folks away in secret without habeas corpus. We can seize your personal property and data without telling you why or when or if we will ever return it. We can stop you from traveling if your name appears on a secret list and we don't have to even tell you your name is on a list if you ask. If you wire $1,000 or more across some states, the state may seize it and you have to prove it was for a "legitimate" purpose. (By the way, the state won't tell anyone it seizes the money - you have to figure that out when the recipient tells you (if he can) that it wasn't received.)

But we will still pay a pension to a self-confessed pedophile sexual predator ex-Congessman. Go figure!

I can't see this thread getting into anything substantive without discussion of the politics of FEAR. Pity!