No suspicion needed to search laptops at border

August 2, 2008

No suspicion needed to search laptops at border

Senator says Homeland Security policies are alarming

By ELLEN NAKASHIMA
The Washington Post

WASHINGTON — Federal agents may take a traveler's laptop or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

"The policies . are truly alarming," said Sen. Russell Feingold, D-Wis., who is probing the government's border search practices.

He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

DHS officials said that the newly disclosed policies, which apply to anyone entering the country, including U.S. citizens, are reasonable and necessary to prevent terrorism.

Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

Civil liberties and business travel groups have pressed the government to disclose its procedures as an increasing number of international travelers have reported that their laptops, cell phones and other digital devices have been taken, for months, in at least one case, and their contents examined.

Other devices on list

The policies state that officers can "review and analyze information" in the traveler's laptop "absent individualized suspicion," and that the laptops and other devices are to be returned "in a reasonable period of time."

The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cell phones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or "pocket litter.' "

Reasonable measures must be taken to protect business information and attorney-client privileged material, the policies say, but there is no specific mention of the handling of personal data.

When a review is completed and no probable cause exists to keep the information, copies of the data must be destroyed. Copies sent to non-federal entities must be returned to DHS, but there is no limitation on authorities keeping written notes or reports about the materials.

"They're saying they can rifle through all the information in a traveler's laptop without having a smidgeon of evidence that the traveler is breaking the law," said Greg Nojeim, senior counsel at the Center for Democracy and Technology.

Yeah, it's a "container". A container with a password and heavily encrypted files.