ACTE Opposes Unwarranted Laptop Seizures by U.S. Agents
Dennis Schaal, Travel Weekly, 5/21/2007 (excerpted)
The Association of Corporate Travel Executives is joining the fight against what it perceives as unwarranted seizures of laptops at U.S. borders and points of entry by Customs and Border Protection officers.
ACTE and the San Francisco-based Electronic Frontier Foundation, a civil liberties group that focuses on digital privacy issues, intend to file an amicus brief on June 19, supporting a district court ruling that federal officials must have "reasonable suspicion" before they can lawfully search the data on travelers' laptops.
The ruling, which the U.S. Justice Dept. is appealing, pits post-9/11 border security needs against Fourth Amendment protections against unreasonable searches.
The government's challenge of the district court ruling will be heard by the U.S. Court of Appeals for the Ninth Circuit in Pasadena, Calif., on a date to be determined.
The issue, which eventually could be decided by the U.S. Supreme Court, is a key one for business travelers, who routinely traverse the globe with business plans, information about their companies' mergers and acquisitions, fiscal performance, new product releases and other confidential business and personal data crammed into their laptops, CDs, DVDs, flash drives, cell phones and other portable electronic devices.
The actual frequency with which laptops are confiscated during security screenings is difficult to gauge because the Dept. of Homeland Security declined to provide statistics.
But Timothy Kane, a lawyer with Arent Fox, the Washington firm representing ACTE, said the business travel organization knew anecdotally that CBP officers at official ports of entry were seizing travelers' laptops without warrants "fairly often" and were routinely keeping them for a week before returning them.
ACTE officials said they also were aware of two members whose laptops had been confiscated at U.S. borders, and that the computer of one, a foreigner, had not been returned after more than a year. That information couldn't be independently verified.
Trying to assess DHS practices on the issue, Susan Gurley, ACTE's executive director, said the association had received a heavily redacted reply from the DHS to a Freedom of Information Act request about government policies on laptop screening.
But ACTE still does not know if the DHS or other law enforcement agencies scan the data they seize, what steps if any they take to safeguard the information or if and under what circumstances the government disposes of the proprietary and personal information it examines.
Adding fuel to those concerns is a recent report by the DHS inspector general, which concluded that the CBP lacked effective inventory management procedures to safeguard its own laptops, let alone computers seized from travelers.
"It's a very important issue for an industry that is constantly changing and collaborating," Gurley said.
The government's appeal, United States of America v. Michael Timothy Arnold, stems from a judge's order in U.S. district court in Los Angeles last October to throw out the evidence against the defendant because the initial warrantless search of his computer violated his Fourth Amendment rights. The judge's order apparently was the first in the country holding that warrantless searches of laptops and other electronic equipment at U.S. borders are unconstitutional if the search does not meet established standards of "reasonable suspicion."
Arnold faces several child pornography charges stemming from the seizure of his laptop, a separate hard drive, a flash drive and six CDs at Los Angeles Airport on July 17, 2005.
A CBP officer later cited the defendant's "disheveled" look and suspicious demeanor among other factors that had led to Arnold's selection for secondary screening upon his arrival from the Philippines following an almost 24-hour flight, according to the court. After Arnold was instructed to boot up the laptop, which had been in his suitcase, CBP officers clicked on two desktop folders, entitled "Kodak Pictures" and "Kodak Memories" and viewed a photo of two nude women, the court said.
After questioning Arnold about his trip and further examining his computer and the other electronic devices, federal agents found numerous images of alleged child pornography and seized the computer and storage devices. They released Arnold after questioning, obtained a warrant two weeks later and used images found in computer searches conducted at the airport and subsequently charged Arnold with multiple counts of child pornography and attempting to engage in illicit sexual conduct in a foreign country.
District Court Judge Dean Pregerson last October granted a defense motion to suppress all the evidence, leaving the government with no case and triggering the appeal.
"The Court concludes that Fourth Amendment protection extends to the search of this type of personal and private information at the border," the judge ruled. "While not physically intrusive as in the case of a strip or body cavity search, the search of one's private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person. This is because electronic storage devices function as an extension of our own memory."
Pregerson said such "government intrusions into the mind" are just as worthy of "Fourth Amendment scrutiny" as physical searches.
The judge ruled that constitutional protections required the government to have had "reasonable suspicion" that Arnold's computer equipment contained criminal evidence before conducting the warrantless search, and that the government did not prove that it had such suspicion.
"The Court further concludes that the correct standard requires that any border search of the information stored on a person's electronic storage device be based, at a minimum, on a reasonable suspicion."
The government had argued that border searches of computer equipment are not subject to the Fourth Amendment standard of reasonable suspicion and that, even if they were, the search of Arnold's computer equipment met the standard.
The Fourth Amendment states: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons to seized."
The government's appeal of the district court decision further argues that it ignored the government's longstanding authority "to search property crossing the border without warrant, probable cause or reasonable suspicion" as there is a "diminished expectation of privacy held by travelers crossing the border."
The government argues that Pregerson improperly "carved out a sweeping exception" for searches of computer equipment, requiring the government to meet a higher standard for these types of searches than screeners do for suitcases, purses, briefcases and paperwork.
Thus, on constitutional grounds, the government is asking the appeals court to reverse the district court's suppression of the evidence against Arnold.
ACTE is taking no position on Arnold's guilt or innocence. The group is acting to counter an apparent trend of courts equating a search and seizure of data from laptops at airports, cruise ports and other border entry points with agents rifling through the contents of a suitcase or bag.
Unlike the California district court, federal courts in Nevada, Texas, New York and Virginia have upheld the constitutionality of routine searches of travelers' electronic equipment on security grounds, according to ACTE.
Corporations, fielding teams of employee travelers around the world, are awakening to the issue. An ACTE survey of its international membership last year found that 86% believed that recent court decisions giving border agents permission to download data and confiscate travelers' computer equipment were ample reason to alter corporate policies on what computer data are prudent to travel with.
Beverly Allen, a travel manager at Tera-dyne in North Reading, Mass., said the company's employee travelers, half of whom travel internationally, are instructed that they should not travel with confidential information on their laptops but should instead relegate that kind of data to flash drives or the companies' servers.
That policy, Allen said, is partly in response to the theft of several employees' PCs out of their cars when they were traveling internationally on business.
For its part, the DHS wants to assure the public that it seeks to facilitate trade and travel and that business travelers should not fear unwarranted detention or laptop seizures, a spokeswoman said.
According to a DHS statement to Travel Weekly: "Business and other travelers should be reassured that CBP officers adhere to all requirements to protect privileged, personal and confidential information. CBP takes extreme care to protect any merchandise being examined by our officers and that is in our possession. All information is safeguarded and kept confidential as we are a law enforcement agency."