WASHINGTON, DC — In what it calls an effort to curb the distribution of child pornography and other illicit data, the U.S. Customs and Border Patrol’s overzealous seizure of laptop computers and other personal data devices could negatively impact the U.S. economy, a group of travel and privacy analyzed told a Senate panel on Wednesday.The Senate Judiciary subcommittee hearing followed by two months a ruling by the Ninth U.S. Circuit Court of Appeals that CBP did not need “reasonable suspicion” to search electronic devices moving into and out of the U.S. In addition to examining the devices on the spot, CBP agents may download any data they contain without guaranteeing to protect the data from unauthorized use, the court ruled. The Electronic Frontier Foundation and the Association of Corporate Travel Executives have filed amicus briefs asking the decision be overturned.
“Our argument is that essentially in today’s world you carry your office with you on electronic devices such as a cell phone, laptop or BlackBerry,” ACTE Executive Director Susan Gurley told the committee. “In the old days, if you were physically sitting in your office, you need a warrant to search it. Now basically one does not need a warrant.”
According to Peter Swire, a professor at Moritz College of Law at Ohio State University, “Opening my suitcase at the border is not the same as opening my laptop and making a permanent record of everything in it. The government policy violates good security practices. It asks for password and encryption keys, which people are trained to never reveal. It violates privacy, chills free speech and compromises business secrets.”
Both people mentioned they were concerned the court’s ruling would convince foreign travelers not to enter the U.S. to conduct legitimate business out of fear sensitive data would be compromised.
ACTE is calling for CBP to conduct privacy impact assessments in order to determine the extent to which its policies may child foreign travel and trade. The association wants CBP to reveal the number of electronic devices it has seized and to disclose how long their data is kept before being returned to its owners.
“If the information will be copied, we want to know that there are safeguards in place so they are sure of the integrity of the data,” Gurley told NextGov.com. “That way individuals know they will get their information back and that it is still private, not potentially shared with hundreds, even if it is inadvertent.”
A George Mason University law professor disagrees. He also testified before the subcommittee, saying travelers have no expectation of privacy when they cross borders. Besides, he noted, all 11 challenges either before the courts now or already adjudicated were brought by child pornographers.
“We ought to have a law that is technologically neutral,” Nathan Sales told NextGov. “The amount of privacy shouldn’t depend on the format, digital or analog.”
The CBP’s policy about electronic devices states that its officers “have the responsibility to check items such as laptops and other personal electronic devices to ensure that any item brought into the country complies with applicable law and is not a threat to the American public. Laptop computers and other personal electronic devices may be detained for violations of law including child pornography, intellectual property offenses, ties to terrorism or other violations of law. CBP officers are dedicated to protecting the civil rights of all travelers. It is not CBP’s intent to subject legitimate business travelers to undue scrutiny, but to ensure the safety of the American public.”
