WaPo reported this week that the dubiously legal seizure of electronics at U.S. borders has prompted protests from travelers who say they now have to worry about 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.
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. The reasons for these searches are 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, whose laptops have been seized and their contents copied before being returned days later, according to Susan Gurley, executive director of ACTE. Gurley said none of the travelers who have complained were ever charged with a crime.
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. "I was assured that my laptop would be given back to me in 10 or 15 days," said Udy, who has received neither her laptop nor an explanation over a year later.
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'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."
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.
This is the legacy we have, thanks to George Bush and his so-called "war on terror" . . .
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