Checking Your Privacy at the Border

Sept. 11, 2008 — -- Rising gas prices, crowded airplanes and tightening wallets have all put a damper on America's travel plans. But there is another reason to think twice before planning a quick weekend jaunt to Mexico -- your privacy.

The amount of information the government collects on citizens crossing our borders, and the means with which it gathers it, is expanding in ways that seem procedurally chilling and irritatingly limitless in scope.

New regulations now allow Customs and Border Protection (CBP) agents to search your laptop computer. Every file, photo, e-mail or scrap of confidential data -- any of the secrets or intensely personal information you keep closely guarded -- is now subject to the spotlight of inspection and possible seizure without any "reasonable suspicion."

The rule extends to all electronic devices: your cell phone, your personal digital assistant, your iPod or iPhone. Ironically, the rule prohibits CBP agents from inspecting any unopened letters without a warrant, as long as those letters are in the postal system. So, while en route to the old country, your letter to grandma asking for her secret goulash recipe has more protection than the confidential merger agreements living on your hard drive.

Americans have come to expect that a CBP agent might rummage through their luggage. And while the thought of a total stranger stumbling across some dirty laundry might raise a blush, most Americans take such actions as a minor inconvenience for the security payoff we've come to expect from these random inspections. But personal computers are not dirty socks.

We increasingly live our lives online, filling our computers with confidential business information, personal writings, a record of our associations, banking transactions and health-care information. The same information locked in a desk drawer would be entitled to full Fourth Amendment protections. But in an environment where technology has far outstripped the law, a digital "strip search" at the border without any suspicion is perfectly legal.

Yes, horror stories abound. A U.S. tech company executive who is a Muslim has been subjected to laptop searches and secondary scrutiny eight times, noted Farhana Khera, president and executive director of Muslim Advocates, during her testimony before a Senate hearing on the procedure.

A survey by the Association of Corporate Travel Executives (ACTE) found that 7 percent of its members have had electronic devices searched at the border. Susan Gurley, executive director of ACTE, told a Senate panel that some executives have had to wait several weeks to get back electronic devices seized during border searches.

And no one is immune from the practice.

A therapist had just flown in from Jordan when she was detained at Customs and her cell phone taken from her. The therapist's daughter waited for her mother to clear Customs while she was questioned for an hour and a half; the daughter tried repeatedly during that time to reach the therapist on her cell phone.

At the end of the questioning the phone was returned, but all the missed-call records from the therapist's daughter had been erased, according to the account the therapist gave to the Washington Post.

The situation has drawn the ire of Congress; Sens. Russ Feingold, D-Wis., and Patrick Leahy, D-Vt., have urged CBP to reconsider its policy.

"If you asked [U.S. residents] whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs and examine the Web sites they have visited, all without any suspicion of wrongdoing, I think those same Americans would say that the government has absolutely no right to do that," Feingold said in his capacity as chairman of the Senate subcommittee on the Constitution, Civil Rights and Property. "And if you asked them whether that actually happens, they would say, 'Not in the United States of America.'"

The only way to be sure that your secrets are safe is to cross the U.S. border carrying nothing more sophisticated than a solar-powered calculator or a computer that's been specially "wiped clean" of any data. But even then, you are not off the hook.

Tracking Your Travel

Thanks to advances in technology and a questionable assertion of legal authority by the Department of Homeland Security, the federal government is now systematically tracking every U.S. citizen entering the country by crossing a land border -- collecting name, date, place of entry, date of birth, gender and photograph. Data on Americans who raise no suspicion at the border will be collected along with the data of people who do.

And that data will be stored for 15 years and can be made available to other agencies of the federal government for a variety of purposes. This new rule is heightened by the fact that 75 percent of all entries into the United States are land border crossings.

The government has long maintained records of Americans entering the country by plane or sea, but now with the advent of RFID-enabled passports, technology enhanced driver's licenses and new border crossing cards, travelers' information can be collected, stored and accessed in ways not previously available.

The Homeland Security Department has seized on that capability to create this new tracking database, without debate, oversight or approval of Congress.

While it's hard to know how broadly the information will be shared, the Privacy Act notice establishing this new system of records gives the DHS very broad latitude to share it with other agencies for routine uses regarding law enforcement and counterintelligence, including data-mining. There are even instances in which Americans' travel data might be released to the media.

Hopefully, Congress will act with legislation aimed at reining in the "no limits" guidelines for the egregious laptop search procedure. And public pressure could force DHS to modify the rules for the department's new travel tracking database. But in the meantime, even if gas prices continue to drop, protect your privacy by planning a "stay-cation" close to home.

Leslie Harris is president and CEO of the Center for Democracy and Technology.