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Travel September 2008 • Vol.6 Issue 9 Page(s) 64-65 in print issue	Add To My Personal Library
Notebook Search & Seizure What Can Happen & What You Can Do

International travel can be quite a hassle. There are the time zone changes, the connections in foreign countries, the potential for lost luggage, and, as of late, the possibility that your notebook, MP3 player, digital camera, cell phone, and PDA might all be searched and even confiscated.

Though not a usual day-to-day occurrence at major airports, a disturbing trend has cropped up in recent months—that of international travelers having their electronic devices taken from them by U.S. CBP (Customs and Border Protection) representatives for suspicion of criminal content.

Reasonable Suspicion

“A laptop is subject to seizure when CBP discovers data or information that an international traveler may have violated a criminal law of the United States. Such data is typically discovered during a border search conducted by a CBP officer. The cases prosecuted to date have uniformly involved child pornography,” says Peter A. Quinter, an attorney at the law firm Becker & Poliakoff. Quinter is an expert on Customs and International Trade.

However, CBP won’t just search laptops for child pornography at the U.S. border (which includes international airports) anymore.

“CBP’s policies and procedures regarding border searches and laptop seizures have not been publicly disclosed. However, CBP has stated in response to a direct inquiry from our law firm that ‘laptop computers may be subject to detention for violation of criminal law such as if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography, or other criminal activity,’” Quinter says.

And, according to the Ninth Circuit Court’s April 21 ruling in U.S. vs. Arnold, “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”

So, under the current law, anyone bringing electronic devices into the country is vulnerable to search and, in some cases, seizure of those devices. And once a laptop or other device is judged to have some form of illegal content on it, CBP officers can decide to confiscate it.

“If CBP officers decide to seize a laptop, the traveler is told that the device will be returned after thorough examination at some indefinite time in the future. We are aware anecdotally of instances where laptops have been withheld for weeks or months. In some instances, laptops have never been returned at all. The decision whether to seize a laptop may take hours, during which the traveling passenger remains isolated in government custody,” says Quinter. “After a laptop is seized, CBP may copy the contents of the hard drive for inspection. In a court filing [in early June], regarding the appeal of a case captioned ‘U.S. v. Arnold,’ it was asserted that CBP has shared the contents of laptops with the Department of Justice—even where the traveler is not suspected of criminal activity. In short, the scope of the examination of the laptop or digital device, the length of time the device is withheld from the traveler, and the extent to which the information is shared with other governmental agencies is highly variable and arbitrarily determined by the CBP officer.”

The question, said Wisconsin Senator Russ Feingold in a June 25 hearing before the Senate Judiciary committee, is a constitutional one.

“When the government looks through the contents of your laptop, is that just like looking through the contents of a suitcase, car trunk, or purse? Or does it raise dignity and privacy interests that are more akin to an invasive search of the person, such that some individualized suspicion should be required before the search is conducted?” said Feingold.

On March 1, 2003, U.S. Customs and Border Protection became a part of the Department of Homeland Security. One of its main missions is to prevent terrorists and terrorist weapons from entering the United States, but does that include electronic devices?

Out Of Your Hands

According to Lee Tien, Senior Staff Attorney for the EFF (Electronic Frontier Foundation), privacy is definitely an issue.

“What is your deepest secret? Do you have any embarrassing health conditions? Have you ever had a family crisis? What are the details of your finances? Do you have trade secrets or confidential information related to your work? The answers to questions like these are often contained on laptops and similar devices. Any reasonable person would say that Americans have a legitimate expectation of privacy in such information,” Tien said in the Senate Judiciary hearing.

For the moment, however, CBP can search and seize a laptop without reasonable suspicion. If your laptop is seized, you may face an uphill battle in getting it back.

“Generally speaking, the traveler has little ability to monitor or expedite the process for securing the return of a laptop. The decision when to release the device rests in the sole discretion of the government. The government has not publicly revealed any information regarding its policies and practices of a laptop detention, seizure, and return to the traveling passenger,” Quinter says.

Of course, everyone can agree at this point that getting your laptop seized is undesirable, but because the government’s guidelines for search and seizure are more than a bit vague, so too are the steps a traveler can take to avoid the inconvenience.

“Unfortunately, there are no foolproof solutions. Business travelers may wish to consider methods for labeling programs and data in a generic manner, in order to minimize the likelihood and extent to which CBP will conduct searches of sensitive information. More broadly, it is imperative that business travelers take precautionary measures in anticipation of possible seizure, such as eliminating personal information and backing up work-related data on the company’s system,” Quinter says.

Thankfully, more than one group is taking this situation seriously. “Two organizations in particular, the Association of Corporate Travel Executives and the EFF (Electronic Frontier Foundation; www.eff.org) have been actively engaged in enhancing community awareness, mobilizing opposition to CBP’s practices, and filing friend of the court or amicus briefs in litigation arising from laptop seizure cases,” Quinter says.

In addition, Quinter’s own law firm is warning passengers. “We have issued an article on this subject as part of our Global Trade & Customs newsletter to alert international travelers about the change in practice by CBP,” Quinter says.

Though no decision has been reached yet, Tien has a suggestion. “EFF recommends that Congress consider protecting all devices that are likely to contain email and other stored communications and communication records. Congress should also clarify that the seizure of data and devices is more than a border search and requires probable cause,” Tien said in his June 25, 2008, testimony.

Traveling Blank

Until a decision is ultimately reached, travelers may want to take steps to keep their data secure. One solution is to travel with “blank” devices—laptops and cell phones that contain no user data. If searched, these devices will yield no information (business or otherwise). Then, when a traveler reaches his destination, he can simply connect to the company VPN (virtual private network) and download whatever information he may need (including Outlook contacts, which can then be synced to the “blank” cell phone). It’s a bit of a hassle, yes, but definitely less of a hassle than potentially having the computer or phone confiscated indefinitely—with all of your precious data onboard.

by Shawn Kupfer

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