Can We Fix The Problem Of Unreasonable Tech Searches At The Border?

It happened on the border.

In May 2010, Pascal Abidor, an Islamic studies doctoral candidate at McGill University, was traveling from Montreal to New York City when he was stopped in the tiny border town of Champlain, New York, by U.S. Customs and Border Protection agents. Abidor, who is of dual American and French citizenship, and is not a Muslim, triggered agents' worst fears. When they turned on Abidor's computer, they found pictures of Hamas rallies; thumbing through his passport, agents saw stamps from past trips to Jordan and Lebanon.

The pictures were part of Abidor's doctoral dissertation, the travel part of his research. But that didn't matter to the agents. 

Abidor says he was handcuffed, taken off the train, and detained in a cell while agents interrogated him about his belongings and his interest in Islam. Hours later he was freed. But his laptop remained in custody for 11 days. When it was returned, Abidor later reported, there was evidence that his personal research files, and even photos and chats with his girlfriend, had all been opened. 

In September of 2010, the American Civil Liberties Union filed a lawsuit on his behalf. Now Abidor is suing the U.S. government on grounds of civil rights violations in a case that has become the face of defending the right to digital privacy and due process at America's borders. 

"The government asserts that when it comes to electronic devices, people who cross the border have no rights," Abidor's lawyer Catherine Crump said in a 2010 interview. Now more than two years later, the Federal District Court opinion could have a lasting impact on the how and why border agents search electronic devices - especially when there is no suspicion of illegal activity. 

What's At Stake 

In the wake of 9/11, the government has touted national security as a means to wield extremely broad border search power (here is the Department of Homeland Security's official search policy). Although the Fourth Amendment prohibits unreasonable search and seizure, U.S. courts have been clear that its protections simply don't apply at the border. In the name of national security and fighting terrorism and crime, border agents operate pretty much carte blanche.

Apart from the hassles and humiliations, here's the problem: American citizens are losing their civil liberties in the name of national security. Travelers keep detailed personal and business data on their devices (which would otherwise require a warrant to search), and letting agents paw through potentially confidential and sensitive info is a real concern to legitimate travelers and the companies for which they work. 

A prime example is another case the ACLU is arguing, House v. Napolitano, wherein computer programer David House's laptop, camera and USB drive were confiscated for 49 days because of his association with the Bradley Manning Support Network (Manning allegedly leaked thousands of military and diplomatic documents to WikiLeaks).

The feds tried to have the case thrown out, but a judge in the Massachussetts Federal District Court said that the government's border search power did not supersede House's First Amendment rights, a ruling that could set the stage for courts limiting how the government administers border searches.

Playing The Numbers

From October 2011 to the end of August, 2012, nearly 12 million travelers endured secondary security screenings after entering the U.S., according to the Department of Homeland Security. The ACLU contends that between October 2008 and June 2010, more than 6,600 people had their electronic devices searched as they crossed U.S. borders.

The United States Customs and Border Protection says 36,000 people are pulled aside for secondary searches every day; of that number about a dozen are screened for their technology. That adds up to some 5,000 electronic device screenings a year, with nosy agents pilfering through travelers' personal information. And while border crossing violations typically elicit thoughts of criminals and drug trafficking, that's not usually at issue in electronic searches. 

"Why do you lose all your rights if you step in an airport (or over a border)," asks Matthew Tollin, a Harvard-trained attorney and founder of wireLawyer. "The current setup doesn't make any sense." There needs to be a reasonable suspicion to check someone's laptop or smartphone, says Tollin, a designation he characterizes as "much lower than probable cause," but a lot different "than not needing any basis at all."

Fixing The Problem

Upcoming court decisions in the Abidor and House cases are the most likely way to limit digital searces by border agents. But privacy advocates are looking at other avenues as well.

One approach is to raise awareness of the issue, says Tollin. This means setting up websites, lodging complaints with groups like the ACLU, creating grassroots campaigns and hounding representatives and lawmakers. If Congress gets enough pressure from constituents, it's possible that it could draft bills to change U.S. policy. But it's hard to imagine passage of any laws that could be construed as soft on national security and terrorism.

Another longshot possibility would be an executive order from the President. Obama could create an executive order to set clearer precedents for search and seizure at the border. "It's a simple matter of tweaking the standard," Tollin said, noting that the Obama is committed to peeling back some of the civil liberty abuses of prior administrations. But unless it becomes a priority, Presidential action remains unlikely.

"It's a tough change," Tollin admits. "Everybody understands screening laptops for C-4 explosives. Everybody understands it's a safety matter getting on a plane. The question here is when you turn the computer on and start reading somebody's personal files, snooping around for stuff you don't have the right to do, it's a huge invasion of privacy. There's plenty of things they can have that are not criminal, that are not terrorist, that they just don't want the government to know."

That's one reason many travelers now choose to store sensitive files not on their devices, but on cloud-based systems. That way, the data is as needed but not available for review by border agents or anyone else who has access to your device. Even if a device is confiscated, travelers can still access their secure data.

 

Photo courtesy Shutterstock.