In a move widely hailed by rights groups, several members of Congress have introduced bills that will prevent Customs and Border Protection (CBP) agents from arbitrarily searching and seizing electronic devices.
A Department of Homeland Security (DHS) policy, publicized July 16th, gave customs agents that right on the grounds of national security, overturning years of restrictions on their ability to do so.
The policy led to protests and court filings by various organizations seeking to reverse the policy.
Senate bill S. 3612, The Travelers’ Privacy Protection Act of 2008 was introduced September 26 by Senator Russ Feingold (D-Wis.) and co-sponsored by Senators Maria Cantwell (D-Wash.), Daniel Akaka (D-Hii.) and Ron Wyden (D-Ore.); and House bill H.R. 7118 was tabled by Rep. Adam Smith (D-Wash.), representing Washington State’s 9th District.
CBP spokesperson Amy Kudwa declined to discuss the bill. “As a matter of policy, we do not comment on matters of pending legislation,” she told InternetNews.com. “We have discussed extensively in a public forum our rationale for the policy we have in place.”
According to Kudwa, the CBP’s most recent statistics, from the first two weeks of August, show that 17 million people sought entry to the United States, and 40 of these had their laptops searched. “Those searches could be as minimal as asking them to turn on their laptops to make sure they’re not hiding contraband in them,” she said, adding that, statistically speaking, “you’re more likely to be struck by lightning than to have your laptop searched.”
Still, the legislation earned praise from various sectors. “The bill raises the standard for searches and restores our Fourth Amendment rights,” Brock Meeks, spokesperson for the Center for Democracy and Technology (CDT), told InternetNews.com.
A question of rights
“There has to be a reasonable suspicion of a crime before customs agents can search or seize your electronic devices,” he added. “We also like the fact that they have to get a court order before they can take a device from you for an unreasonable period of time.”
Susan Gurley, executive director of the Association for Travel Executives, ACTE, which called for industry support of the bill, told InternetNews.com that she was happy that the bill was tabled, but “it has a problem in that it doesn’t protect non-U.S. citizens, and we were hoping it would for the sake of our non-U.S. members.”
ACTE, which has been fighting the warrantless seizure powers of the CBP, represents the global business travel industry. Its members are corporate travel managers in businesses in 82 countries worldwide.
The American Civil Liberties Union was unavailable for comment at press time but issued a release that welcomed the tabling of the Travelers’ Privacy Protection Act.
The Travelers’ Privacy Protection Act requires DHS agents to “have reasonable suspicion of illegal activity” before searching the contents of electronic devices carried by U.S. citizens or lawful residents. It also prohibits profiling based on race, ethnicity, religion or national origin.
In addition, the bill specifies that, after 24 hours, a search becomes a seizure and this requires probable cause and a warrant or court order. It also states that information acquired during an electronic search at the border is protected through strict limitations on disclosure with “narrow exceptions” for sharing information about possible criminal violations or foreign intelligence information.
The bill also provides oversight of the DHS. It requires that the DHS provide information on its border search policies and practices to Congress and the public.
Seek even if you may not find
At present, CBP agents can seize and search the contents of any electronic device brought into the United States by a traveler, and can hold the devices for an indefinite period, the CDT’s Meeks said.
The frenzy for search and seizure in light of security concerns has seen even childrens’ laptops being searched.
Prominent victims include former hacker Kevin Mitnick, now a security consultant, who was detained at Atlanta airport in October, and guitarist and producer for the band Death Cab for Cutie, Christopher Walla, whose hard drive containing songs for a new album was seized at the Canadian border.
