It may surprise many air travelers, but your laptop and its contents are far from secret at the nation’s international airports. Increasingly, this is prompting new privacy concerns for business travelers.
Customs and Border Protection agents have the authority to search and seize laptop computers belonging to travelers entering the United States, those of U.S. citizens and foreigners alike. And they use it.
But just how far these officers can go in inspecting the contents of an overseas traveler’s laptop is being tested in federal court.
In July 2005, Michael Timothy Arnold, then 43, of San Juan Capistrano arrived at Los Angeles International Airport after a nearly 20-hour flight from the Philippines, according to court documents.
After retrieving his luggage from baggage claim, he proceeded to the customs checkpoint. An agent selected him for additional screening because she was targeting single males between 20 and 59 who were returning from Asia.
After some secondary questioning, the agent inspected Arnold’s luggage, including his laptop computer. She instructed Arnold to turn on the computer.
When the computer booted up, its desktop displayed the usual assortment of icons and folders, including two folders titled “Kodak Pictures” and “Kodak Memories.” The agent and a colleague clicked on the folders and looked at photographs on the computer, including one of two nude women.
Special agents with U.S. Immigration and Customs Enforcement were called in to question Arnold about the contents of his computer.
He was detained for several hours while they examined the computer, and they found numerous images depicting what they believed to be child pornography.
The agents confiscated the computer as well as a hard drive, some CDs and a flash drive and released Arnold. He was later arrested, jailed, held without bail until this week, and charged with transporting and possessing child pornography and attempting to engage in illicit conduct in a foreign place.
It is cases like Arnold’s that have corporate travel managers up in arms -- but not because of the pornography connection. Their concern is with what happens to the proprietary data that business travelers often carry on their laptops.
“That U.S. government officials have the right to examine, download or even seize business travelers’ laptops came as a surprise to the majority of our members,” said Susan Gurley, executive director of the Assn. of Corporate Travel Executives, an Alexandria, Va.-based trade group.
Eighty-six percent of members surveyed said that court decisions allowing government agents to seize computers at the borders were cause to limit the kind of proprietary information typically carried on executives’ laptops. Two out of 155 members surveyed said they had an employee who had had a laptop seized.
The politics and the law behind the seizures are complicated, according to attorneys and court documents. The 4th Amendment of the U.S. Constitution protects citizens against unreasonable search and seizure. But the courts have given government agents more leeway to conduct searches at the border than inside the country.
For example, the courts have found that it is acceptable for border agents to search through the belongings of someone entering the country for no reason other than that he or she is entering the country. But if the search becomes more invasive, such as a pat-down or a body cavity search, then agents have to have probable cause.
It is at this nexus that the courts are trying to decide what constitutes reasonable when it comes to a laptop computer. After all, it could contain personal information, confidential business information, blueprints for terrorist attacks or child pornography.
A ruling last month by U.S. District Judge Dean D. Pregerson of Los Angeles in the Arnold case may be the beginning of a shift in the courts.
In his opinion, the judge noted that “the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object.”
The court found that “a search of this type without reasonable suspicion goes well beyond the goals of the customs statutes and the reasonableness standard articulated in the 4th Amendment.”
“While not physically intrusive as in the case of a strip or body cavity search, the search of one’s private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more so, of an intrusion into the dignity and privacy interests of a person.
“This is because electronic storage devices function as an extension of our own memory. They are capable of storing our thoughts, ranging from the most whimsical to the most profound. Therefore government intrusion[s] into the mind ... are no less deserving of 4th Amendment scrutiny than intrusions that are physical in nature.”
As a result, the judge threw out laptop-related evidence against Arnold retrieved during the search, which may hurt the government’s case. The government is appealing the judge’s ruling, said Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles.
Arnold still faces federal child pornography charges, but he was released from federal custody this week on $50,000 bail.
The association of travel executives is not concerned as much with the constitutional questions as it is with the practical implications for business travelers.
It has tried to get answers from Customs and Border Protection about its policies regarding the search and seizure of laptops and measures taken to protect sensitive business information on them but has not received an answer to its queries, Executive Director Gurley said.
The Times e-mailed the agency questions including what its policies are regarding the protection of sensitive corporate data.
The agency responded with a statement saying, in part, that “officers adhere to all requirements to protect privileged, personal and business confidential information.”
Said Gurley, “Our issue is whether the proprietary business information on the hard drive can be taken. Is it returned? Is it destroyed? We have not received any word from [the agency], not even ‘Thank you very much, we have your request.’
“What’s so difficult about giving the public this information?”