Traveling abroad on business? Don’t be surprised if, upon your return, a U.S. Customs and Border Protection (CBP) officer asks for your laptop in order to inspect and copy all the personal and business information that’s stored on it, especially if you are an Asian- or Arab-American. And should you be so unfortunate to be singled out, don’t expect your equipment to be returned anytime soon.
The searches are becoming common enough that, according to the Washington Post, a number of companies are advising employees who travel internationally to wipe their hard drives before leaving the country in order to prevent disclosure of proprietary or highly secure information.
The Asian Law Caucus, with support from the Electronic Frontier Foundation (EFF), filed a lawsuit sparked by 15 searches and seizures of laptops, cell phones, MP3 players and other electronics. Almost all of these cases, said the Post, involved travelers of Muslim, Middle Eastern or South Asian backgrounds who were either U.S. citizens or foreign nationals employed by U.S. companies, including Internet infrastructure powerhouse Cisco Systems and Radius, a leading corporate travel management company.
In some instances, travelers have had to wait weeks for their property to be returned – and an executive from Radius is still waiting for CBP to return a laptop seized more than one year ago.
Meanwhile, a Freedom of Information Act request by the Association of Corporate Travel Executives (ACTE) asking for the guidelines CBP uses for search and seizure of electronic equipment, and the policies regarding the data copied from them, has yielded nothing.
For its part, CBP equates inspecting the contents of laptops with inspecting contents of suitcases. A laptop or other device, the agency says, may be seized if it contains information possibly tied to terrorism, narcotics smuggling, child pornography or other criminal activity, a CBP spokeswoman told the Post.
Trouble is, in none of the cases that the EFF and Asian Law Caucus is handling, was there any suspicion of a crime, nor was any criminal charge ever brought. Far from identifying threats, this latest episode of “security theater,” as Reason Foundation Founder Robert Poole calls it, is purely a fishing expedition that directly violates the Fourth Amendment:
The right of the people to be secure in persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…
No other federal, state or local enforcement agency could demand you turn over the information on your PC or other personal technology devices without a search warrant. The only reason CBP is getting away with this is because they have the authority to open and inspect luggage at border entry points.
But laptops and cell phones are not suitcases. The CBP’s mandate is border protection. They are not PC police. The 68-page “Know Before You Go” is clear on what inbound travelers may bring into the U.S., what they may not, and what is subject to customs duties. The brochure makes clear that when a customs officer inspects your luggage, he or she is looking for undeclared merchandise or contraband, not what you’ve recorded in your diary, address book, corporate and personal papers - whether electronic or on paper.
And, beyond obviously pirated material, CBP provides no information as to what it might consider illegal electronic content. If it was about enforcing anti-piracy laws, CBP would not be copying emails, web histories, calling records and other personal data. The whole process is an unconstitutional overreach. In rifling through your laptop, the CBP is not looking for items you might be bringing in; it is looking for information about who you know, what you did and what you think.
Finally, CBP has yet to explain how all of this protects us from terrorism. After all, a U.S.-based Al-Qaeda operative does not have to travel abroad to communicate with a foreign cell. Would a genuine terrorist bent on harm bring his own cell phone into the U.S., or would he buy a prepaid, untraceable phone as soon as he hit the streets here?
And what exactly happens to all this data CBP is collecting? CBP assertions that these agents are “trained” in handling data are hardly comforting. The U.S. government employee who had a laptop containing millions of names, addresses and social security numbers stolen from his home had been “trained” not to take laptops out of the office. For all we know, the entire set of access codes for Cisco’s top-tier Internet servers, or the travel habits of some of America’s Fortune 50 executives, are sitting on a Flash drive carelessly left next to the coffee maker in an airport staff break room.
CBP’s seizures of laptops and other electronic devices continue the troubling pattern on the part of the federal government to erode civil liberties in the name of security. Rather than make us safer, they likely put Americans and American interests at greater risk because they expose private and secure information. They yield little to nothing in terms of actionable intelligence while egregiously violating the rights of U.S. and non-U.S. citizens alike. They serve no reasonable purpose. The courts need to stop these unlawful searches now.