Laptop border searches to continue

When the U.S. Department of Homeland Security announced last summer that it could seize anyone's laptop, mobile phone, or camera at the border to analyze them for an indefinite period, the criticism was immediate.

Sen. Russ Feingold, a Democrat, called the move "alarming," and the ACLU denounced it as "surrendering your Fourth Amendment rights at the border."

It didn't help that the U.S. Ninth Circuit Court of Appeals already had blessed the practice--meaning that anyone, even U.S. citizens, can have their tangle of gadgetry seized at borders or at international arrivals even if there's zero evidence of illicit activities. (It won't happen to everyone in practice, of course, but DHS nevertheless reserved the right to do it.)

On Thursday, Homeland Security Secretary Janet Napolitano announced new guidelines for searching and seizing electronic devices at the border. In a press release, DHS said the guidelines will "enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry."

Rhetoric aside, in reality, not much has changed. Laptops and electronic gear can still be seized and held indefinitely; there's no requirement that they be returned to their owners after even six months or a year has passed, though supervisory approval is required if they're held for more than 15 days. The complete contents of a hard drive or memory card can be perused at length for evidence of lawbreaking of any kind, even if it's underpaying your taxes or not paying parking tickets.

This kind of open-ended scanning should worry anyone who travels internationally, not just privacy advocates. When we have laws like the No Electronic Theft Act, which makes sharing a sufficient number of MP3 files a federal crime, how many college students are unindicted felons? File this under the show-me-the-man-and-I'll-show-you-the-crime department.

Harvey Silverglate, a criminal defense attorney in Boston and co-founder of the Foundation for Individual Rights in Education, has a forthcoming book on this point called Three Felonies A Day. "When a statute is so broad that it catches so much ordinary activity, it's very problematic," Silverglate told me in an interview for CBSNews.com this week.

Here's an excerpt from the Homeland Security directive (PDF) to U.S. Customs and Border Protection: "An Officer may detain electronic devices, or copies of information contained therein, for a brief, reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location, and is to be completed as expeditiously as possible."

Once the examination is complete and you have not been deemed a criminal, according to Homeland Security's privacy impact assessment (PDF): "CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense." (Who's responsible if it's damaged in transit is anyone's guess.)

Homeland Security said Thursday that it performed approximately 1,000 laptop searches from October 1, 2008, through August 11, 2009.

One way to protect yourself from these searches is to use whole disk encryption from a company like PGP and make sure your laptop is completely powered down when crossing the border.

It's true that under the Obama administration, Homeland Security is trying to discourage agents from adding copies of your digital photos or other private files to their personal collections, and it has warned that trade secrets, journalists' notes, and medical records should be handled carefully. These are improvements over the Bush administration's policy.

But a better rule might be a simple one: require some evidence of wrongdoing--at least some suspicion of illegal activity--before agents start to poke through your PC and assorted gadgetry. This is what a bill introduced last year by Feingold would have done. The problem the Wisconsin senator wanted to address still exists; let's hope his desire to fix it does as well.