We take, we look, we share … border search rules exposed

Posted by Humphrey Cheung

Washington DC – Newly disclosed Department of Homeland Security rules are instructing border agents to seize laptops and other data carrying instruments without probable cause.  An internal memo dated July 16th and disclosed by the Washington Post, tells officers of the Customs and Border Protection agency that they can examine and detain any traveler’s documents and electronic devices.  Furthermore the material can be shipped off for examination and even shared with other government agencies.  According to the memo, affected travelers will receive their property back in a “reasonable” amount of time.

DHS is implementing these new rules under the onus of protecting the nation’s security and to prevent theft of intellectual property.  Agents can examine and take everything from laptops, ipods and other mp3 players to documents like books, pamphlets and printed material.  The property can be further examined off-site by subject matter experts and, if a supervisor authorizes, all the data is then shared to other government departments.

There are two interesting exemptions from the searches.  Documents covered by attorney-client privilege cannot be searched and sealed and stamped US mail (carried by the US postal service) cannot be opened.  Mail carried by individuals are still subject to examination.

Of course these rules aren’t anything new because border agents have been seizing property for decades.  While some people are crying foul citing the Fourth Amendment as an absolute protection against unreasonable search and seizure, it’s been proven time and time again that this protection doesn’t extend to travelers at border checkpoints.  Back in April, the Ninth US Circuit Court of Appeals ruled that border agents don’t need any suspicion to search your belongings.  In that case, a Southern California man, returning from the Philippines, was charged with child pornography after border agents found indecent pictures on his laptop.

While the memo does outline steps to protect confidential and business information, many privacy advocates and even US Senators aren’t so willing to give the Department of Homeland Security a blank check on border searches.  According to the memo, any document or information that doesn’t point to a crime or arouse further suspicion on the traveler will be destroyed and business information will be treated with care.

Senator Russell Feingold (D-Wisconsin) says the rules are “truly alarming”.  The Electronic Frontier Foundation and the Association of Corporate Travel Executives agree and have filed an amicus brief with the 9th Circuit Court asking the judges to rehear the case.  They argue that laptops contain an enormous amount of information making such searches equally damaging to your privacy.

Business travelers are already adapting to the new rules.  Some have resorted to encrypting the entire drive while others are using company-provided sterile laptops (ones that contain no important information).  Tech-savvy individuals can of course upload confidential files to servers or email documents back to themselves – something the NSA would probably love.  Some businessmen are even ditching the laptop completely.