So the IntelList has been high volume with discussions based
upon the below Washington Post article. Wonder how safe we really are if we
have everything encrypted in FileVault?
Clarity Sought on
Electronics Searches
U.S. Agents Seize Travelers' Devices
By Ellen Nakashima
Washington Post Staff Writer
Thursday, February 7, 2008; A01
Nabila Mango, a therapist and a U.S. citizen who has lived in the country
since 1965, had just flown in from Jordan last December when, she said, she was
detained at customs and her cellphone was taken from her purse. Her daughter,
waiting outside San Francisco International Airport, tried repeatedly to call
her during the hour and a half she was questioned. But after her phone was
returned, Mango saw that records of her daughter's calls had been erased.
A few months earlier in the same airport, a tech engineer returning from a
business trip to London
objected when a federal agent asked him to type his password into his laptop
computer. "This laptop doesn't belong to me," he remembers
protesting. "It belongs to my company." Eventually, he agreed to log
on and stood by as the officer copied the Web sites he had visited, said the
engineer, a U.S. citizen who spoke on the condition of anonymity for fear of
calling attention to himself.
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.
The seizure of electronics at U.S. borders has prompted protests from
travelers who say they now weigh the risk of 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.
Today, the Electronic
Frontier Foundation and Asian Law Caucus, 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. Almost all involved
travelers of Muslim, Middle Eastern or South Asian background, many of whom,
including Mango and the tech engineer, said they are concerned they were
singled out because of racial or religious profiling.
A U.S.
Customs and Border Protection spokeswoman, Lynn Hollinger, said officers do
not engage in racial profiling "in any way, shape or form." She said
that "it is not CBP's intent to subject travelers to unwarranted
scrutiny" and that a laptop may be seized if it contains information
possibly tied to terrorism, narcotics smuggling, child pornography or other
criminal activity.
The reason for a search is 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,
including Udy, whose laptops have been seized and their contents copied before
usually being returned days later, said Susan Gurley, executive director of
ACTE. Gurley said none of the travelers who have complained to the ACTE raised
concerns about racial or ethnic profiling. Gurley said none of the travelers
were charged with a crime.
"I was assured that my laptop would be given back to me in 10 or 15
days," said Udy, who continues to fly into and out of the United States.
She said the federal agent copied her log-on and password, and asked her to
show him a recent document and how she gains access to Microsoft
Word. She was asked to pull up her e-mail but could not because of lack of
Internet access. With ACTE's help, she pressed for relief. More than a year
later, Udy has received neither her laptop nor an explanation.
ACTE last year filed a Freedom of Information Act request to press the
government for information on what happens to data seized from laptops and
other electronic devices. "Is it destroyed right then and there if the
person is in fact just a regular business traveler?" Gurley asked.
"People are quite concerned. They don't want proprietary business
information floating, not knowing where it has landed or where it is going. It
increases the anxiety level."
Udy has changed all her work passwords and no longer banks online. Her
company, Radius, has tightened its data policies so that traveling employees
must access company information remotely via an encrypted channel, and their
laptops must contain no company information.
At least two major global corporations, one American and one Dutch, have
told their executives not to carry confidential business material on laptops on
overseas trips, Gurley said. In Canada,
one law firm has instructed its lawyers to travel to the United States with
"blank laptops" whose hard drives contain no data. "We just
access our information through the Internet," said Lou Brzezinski, a
partner at Blaney McMurtry, a major Toronto
law firm. That approach also holds risks, but "those are hacking risks as
opposed to search risks," he said.
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 should not matter . . . whether documents and pictures are kept in
'hard copy' form in an executive's briefcase or stored digitally in a computer.
The authority of customs officials to search the former should extend equally
to searches of the latter," the government argued in the child pornography
case being heard by a three-judge panel of the Court of Appeals for the 9th
Circuit in San Francisco.
As more and more people travel with laptops, BlackBerrys
and cellphones, the government's laptop-equals-suitcase position is raising red
flags.
"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."
Hollinger said customs officers "are trained to protect confidential
information."
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.
Customs sometimes singles out passengers for extensive questioning and
searches based on "information from various systems and specific
techniques for selecting passengers," including the Interagency Border
Inspection System, according to a statement on the CBP
Web site. "CBP officers may, unfortunately, inconvenience law-abiding
citizens in order to detect those involved in illicit activities," the
statement said. But the factors agents use to single out passengers are not
transparent, and travelers generally have little access to the data to see
whether there are errors.
Although Customs said it does not profile by race or ethnicity, an officers'
training guide states that "it is permissible and indeed advisable to
consider an individual's connections to countries that are associated with
significant terrorist activity."
"What's the difference between that and targeting people because they
are Arab or Muslim?" Cole said, noting that the countries the government
focuses on are generally predominantly Arab or Muslim.
It is the lack of clarity about the rules that has confounded travelers and
raised concerns from groups such as the Asian Law Caucus, which said that as a
result, their lawyers cannot fully advise people how they may exercise their
rights during a border search. The lawsuit says a Freedom of Information Act
request was filed with Customs last fall but that no information has been
received.
Kamran Habib, a software engineer with Cisco
Systems, has had his laptop and cellphone searched three times in the past
year. Once, in San Francisco, an officer "went through every number and
text message on my cellphone and took out my SIM card in the back," said
Habib, a permanent U.S. resident. "So now, every time I travel, I
basically clean out my phone. It's better for me to keep my colleagues and
friends safe than to get them on the list as well."
Udy's company, Radius, organizes business trips for 100,000 travelers a day,
from companies around the world. She says her firm supports strong security
measures. "Where we get angry is when we don't know what they're
for."
Staff researcher Richard Drezen contributed to this report.
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