Bill Hogan was returning home to the U.S. from Germany in February when a customs agent at Dulles International Airport pulled him aside. He could reenter the country, she told him. But his laptop couldn’t.
U.S. Customs and Border Protection agents said he had been chosen for “random inspection of electronic media,” and kept his computer for about two weeks, recalled Hogan, 55, a freelance journalist from Falls Church, Va.
Fortunately, it was a spare computer that had little important information. But Hogan felt violated.
“It’s not an inspection. It’s a seizure,” he said. “What do they do with it? I assume they just copy everything.”
For several years, U.S. officials have been searching and seizing laptops, digital cameras, cellphones and other electronic devices at the border with few publicly released details.
Complaints from travelers and privacy advocates have spurred some lawmakers to fight the U.S. Customs policy and to consider sponsoring legislation that would sharply limit the practice.
As people store more and more information electronically, the debate hinges on whether searching a laptop is like looking in your luggage or more like a strip search.
“Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicion-less searches of Americans’ laptops and similar devices go too far,” said Sen. Russell D. Feingold (D-Wis.), who chairs a subcommittee that examined the searches at a hearing Wednesday. “Congress should not allow this gross violation of privacy.”
Authorities need a search warrant to get at a computer in a person’s home and reasonable suspicion of illegal activity to search a laptop in other places. But the rules change at border crossings.
Courts consistently have ruled that there’s no need for warrants or suspicions when a person is seeking to enter the country -- agents can search belongings, including computer gear, for any reason.
The latest decision was from the U.S. 9th Circuit Court of Appeals, which in April ruled that agents had acted properly when turning over information used to charge a traveler with possession of child pornography. His laptop had been searched in 2005 at Los Angeles International Airport.
Any routine search is considered “reasonable” under the 4th Amendment, legal scholars agree. But Feingold is worried that the law has not kept up with technology.
Said Lee Tien, senior staff attorney for the Electronic Frontier Foundation, “People keep their lives on these devices: diaries, personal mail, financial records, family photos. . . . The government should not be able to read this information.”
In February, the group and the Asian Law Caucus sued authorities for more information about the program.
The issue is of particular concern for businesses, which risk the loss of proprietary data when executives travel abroad, said Susan K. Gurley, executive director of the Assn. of Corporate Travel Executives. After the California court ruling, the group warned its members to limit the business and personal information they carry on laptops taken out of the country.
Of the 100 people who responded to a survey the association did in February, seven said they had been subject to the seizure of a laptop or other electronic device.
Jayson P. Ahern, deputy commissioner of Customs and Border Protection, said in written testimony to the subcommittee that the agency would “protect information that may be discovered during the examination process, as well as private information of a personal nature that is not in violation of any law.” The agency conducts “a regular review and purging of information that is no longer relevant.”
Feingold said the testimony gave “little meaningful detail” about the program. He is considering legislation to prohibit such routine searches of electronic devices without reasonable suspicion.
But Sen. Sam Brownback (R-Kan.) said officials have to balance individual rights with protecting the nation.
“Terrorists take advantage of this kind of technology,” he said.
Hogan, the freelance journalist, said there was no reason for customs agents to think he was a terrorist. He advised people to take precautions with their laptops when they leave the country.
“I certainly would never take it again,” he said.