Wednesday, June 25, 2008

Feingold Blasts Chertoff On Laptop Seizure Policy

Senate Judiciary Constitution Subcommittee Chairman Russell Feingold, D-Wis., slammed the Homeland Security Department on Wednesday for demonstrating "its perverse belief that it is entitled to keep anything and everything secret from the public" by not sending a witness to a hearing that examined the agency's practice of searching and sometimes confiscating laptops and cellular phones of U.S. citizens returning from overseas travel.

Feingold wrote to DHS Secretary Michael Chertoff last week urging him to reconsider but instead, the agency provided written testimony that was late and offered "little meaningful detail on the agency’s policies and raises more questions than it answers," he said. Witnesses included tech, legal and privacy experts as well as a travel industry official and a Muslim activist.

In April, Feingold questioned Chertoff about reports that customs agents have been conducting such searches and copying the contents. Reports surfaced earlier this year that some travelers believed they were targeted because they are Muslim or of Middle Eastern or South Asian descent. "When the government looks through the contents of your laptop, is that just like looking through the contents of a suitcase… or does it raise dignity and privacy interests that are more akin to an invasive search?" he asked.

Subcommittee ranking member Sam Brownback, R-Kan., said the issue is one worth exploring, but must be viewed in the context of evolving computer-based threats. "New technology in some cases unfortunately brings with it new ways to misuse technology," he said, noting that convicted terrorist Zacharias Mousawi kept data on his laptop that, if discovered, might have thwarted the Sept. 11, 2001 attacks. He also said the 11 federal cases involving laptop searches all involved the trafficking of illegal child pornography.

An aide said legislation or other action is a possibility and witnesses recommended a number of steps that could be taken. Association for Corporate Travel Executives Executive Director Susan Gurley urged senators to request that DHS conduct a privacy impact assessment on laptop seizures that include the minimum, average and maximum amount of time it takes agents to return the device to its owner. Seizure and data retention policies should also be posted publicly, she said.

Electronic Frontier Foundation attorney Lee Tien said the problem is simple: "The government says it doesn’t matter if you're a senator on a fact-finding trip or a tourist on vacation, your data is fair game." People "keep their lives on these devices," including diaries, e-mail, financial records and photographs and agents should be required to report their search and seizure activity and inform travelers of their rights, he said. "The Fourth Amendment works differently at the border -- but that doesn’t mean not at all."

Border searches are a vital component of U.S. security and "it would be a grave mistake to create any technology as a sanctuary" or impose any rules that would impede agents' ability to engage in searches and seizures, Heritage Foundation scholar James Jay Carafano said. But he added that "wasting time on people who are not high-risk travelers are is simply an unconscionable behavior."