Seizing Laptops and Cameras Without Cause

A controversial customs practice creates a legal backlash.

Bill Hogan (center) is seen attending the hearing on "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel" scheduled by the Senate Committee in the Senate Dirksen Office Building on Capitol Hill.

Bill Hogan (center) is seen attending the hearing.

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Returning from a vacation to Germany in February, freelance journalist Bill Hogan was selected for additional screening by customs officials at Dulles International Airport outside Washington. Agents searched his luggage, he said, "then they told me that they were impounding my laptop."

Shaken by the encounter, Hogan examined his bags and found the agents had also inspected the memory card from his camera. "It was fortunate that I didn't use [the laptop] for work," he said, "or I would have had to call up all my sources and tell them that the government had just seized their information." When customs offered to return the computer nearly two weeks later, Hogan had it shipped to his lawyer.

How common Hogan's experience is remains unclear. But an April ruling by the U.S. Ninth Circuit Court of Appeals found that the Department of Homeland Security, which oversees Customs and Border Protection, does have full authority to search any electronic devices without suspicion in the same way that it can inspect briefcases.

Now, businesses and other organizations are pushing back, Congress is investigating, and lawsuits have been filed challenging how the program selects travelers for inspection. The ninth circuit ruling was the result of more than 20 lawsuits involving electronics seized from travelers who were nearly all of Muslim, Middle Eastern, or South Asian descent.

Citing the lawsuits, customs officials decline to say how many computers, storage drives, cellphones, and BlackBerrys they have confiscated or what happens to them afterward. Officials declined to testify at a recent Senate hearing, although they wrote in a prepared statement that officers "have the responsibility to check items such as laptops and other personal electronic devices to ensure that any item brought into the country complies with applicable law and is not a threat to the American public."

But congressional investigators say that copies of drives are sometimes made, meaning customs could be duplicating corporate secrets, legal and financial data, personal E-mails and photographs, along with stored passwords for accounts with companies ranging from Netflix to Bank of America.

The practice of storing and duplicating material might be something that both opponents and supporters of seizure could agree to regulate, says Kansas Republican Sen. Sam Brownback, an otherwise staunch supporter of customs' authority. Larry Cunningham, an assistant district attorney from New York, told the hearing: "I am aware of no authority that would permit the government, without probable cause to believe it contains contraband, to keep a person's laptop or to copy the contents of its files."

Whatever the case, the controversial practice has prompted some businesses to change their policies about traveling with corporate information. Many now require employees to access data remotely to avoid confiscations. "[Seizure] immediately deprives an executive or company of the very data—and revenue—a business trip was intended to create," says Susan Gurley, head of the Association of Corporate Travel Executives, which is lobbying for greater transparency and government oversight of the confiscations. "As a businessperson returning to the U.S., you may find yourself effectively locked out of your electronic office indefinitely." Indeed, while Hogan's computer was returned within two weeks, others say they have had theirs held for months.

Customs insists that terrorism and child pornography are sufficient justification for electronics searches. And even civil libertarians agree it makes sense for customs to search luggage, which could pose immediate dangers to aircraft and passengers. But, says Marc Rotenberg, executive director of the Electronic Privacy Information Center, "customs officials do not go through briefcases to review and copy paper business records or personal diaries, which is apparently what they are now doing in digital form. These pda's don't have bombs in them."

And then there are the precedents that critics say the program could set. Imagine, they say, if other nations began seizing the laptops of U.S. travelers. "We wouldn't be in a position to stronglyobject," Rotenberg says. Indeed, U.S. officials have advised visitors to this summer's Olympics in Beijing that their lap- tops may be targeted for duplication or bugging by the Chinese.

Corrected on : Updated June 27, 2008