, SecurityFocus 2008-05-02
A recent federal district court ruling upholding seizures of electronic devices, such as laptops and iPhones, at the U.S. border has traveler- and civil-rights organizations worried that personal and sensitive data could be put at risk.
On Thursday, almost three dozen organizations -- including civil-rights advocates, academic groups, and religious and minority groups -- sent an open letter to four congressional committees, asking that their members consider legislation to "protect all Americans against suspicionless digital border inspections." The letter came ten days after a federal appeals court in the Central District of California ruled that border agents could search laptops without reasonable suspicion of illegal activity. The appeals court overturned a lower court's ruling that stated the evidence of such searches would not be admissible in court.
While the case in question involved the discovery of what investigators believe is illicit pornography, the ability to search any person's computer, personal digital assistants or cell phones violates the protections against "unreasonable searches" contained in the Fourth Amendment of the U.S. Constitution, the letter argued.
"In a free country, the government cannot have unlimited power to read, seize, store and use all information on any electronic device carried by any traveler entering or leaving the nation," the signatories stated in the letter.
The level of surveillance by the United States government has become an increasing worry to civil-rights advocates as well as professional, minority and religious groups that believe their members could be targeted. As part of its "War on Terror," the Bush Administration has instituted a program to eavesdrop on Internet and phone communications, an initiative that violates the Foreign Intelligence Surveillance Act (FISA) and has become the focus of a battle in Congress to craft a new law to govern such wiretapping.
In the latest battle, 34 organizations and seven technologists have asked both the Judiciary and Homeland Security Committees in the U.S. House of Representatives and the U.S. Senate to consider legislation that would limit digital border searches and make the process and conditions for such searches more open. The Electronic Frontier Foundation, a digital-rights group and one of the sponsors of the letter, has requested information on the conditions that would trigger a digital search by border agents.
"We don't really know what the Department of Homeland Security's procedures and practices are here," said Marcia Hofman, a staff attorney with the EFF. "And the courts are not holding them accountable. That's why we want Congress to step in."
The case at the heart of the debate concerns whether evidence from the July 2005 search of a laptop owned by then-43-year-old Michael Arnold can be used by prosecutors. Returning from a three-week trip from the Philippines, Arnold was stopped by customs agents in Los Angeles International Airport and asked to show that his laptop was functioning, according to court filings. When custom agents inspected the computer, they found two folders on the desktop labeled "Kodak Pictures" and "Kodak Memories." Perusing through the files in those folders, the agents found pictures of two nude women and decided to conduct a more thorough investigation, which turned up suspected child pornography.
Arnold filed a motion to suppress the evidence. A federal district court in Los Angeles agreed with the defendant that the search had been unreasonable. However, in April, the U.S. Court of Appeals for the Ninth Circuit overturned the lower courts ruling and allowed the evidence from the search. In their ruling, the three-judge panel likened the process to a previous case where a cursory search of a van at the Canadian border revealed video camera that contained footage of a tennis match focusing "excessively on a young ball boy." A further search of the van found several photo albums depicting suspected child pornography, according to court documents.
While the search led to grim evidence of an alleged crime, the letter's signatories argued that the power of unregulated digital searches will be abused. The ruling has worried international workers, whose laptops may contain proprietary company information, financial data or sensitive records. The Association of Corporate Travel Executives, one of the letter's signers, recommended that workers not use their personal laptops for international travel and limit the amount of proprietary and personal data stored on any notebook computer taken across borders.
"In a time of heightened international security, it will take a brave Congress to rule that parties may not be subject to suspicionless searches," Susan Gurley, the executive director of ACTE, said in a statement.
Other organizations that signed the letter included the American Association of University Professors, the Multiracial Activist, Muslim Advocates and the Republican Liberty Caucus.