US Homeland Security continues laptop seizures

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

Democratic senator Russ Feingold called the move "alarming" and the ACLU denounced it as "surrendering your Fourth Amendment rights at the border".

It did not help that the US Ninth Circuit Court of Appeals had already blessed the practice, which meant that anyone, including US citizens, can have their gadgets seized at borders or international arrivals, even if there is no evidence of illicit activities. Of course, it will not happen to everyone in practice, but the DHS nevertheless reserves the right to do so.

On Thursday, DHS secretary Janet Napolitano announced new guidelines for searching and seizing electronic devices at the border. In a press release, DHS claimed that it would "enhance and clarify oversight for searches of computers and other electronic media at US ports of entry".

Rhetoric aside, in reality, not much has changed. Laptops and electronic gear can still be seized and held indefinitely; there is no requirement that they be returned to their owners even after a year has passed, although supervisory approval is required if they are 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 is underpaying your taxes or not paying parking fines.

This kind of open-ended scanning should worry anyone who travels internationally — not just privacy advocates. With laws such as the No Electronic Theft Act, which makes sharing a sufficient number of MP3 files a federal crime, how many US college students are now classified as unindicted felons?

Harvey Silverglate, a criminal defense attorney in Boston and co-founder of the Foundation for Individual Rights in Education, has a forthcoming book being published 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 said in an interview this week.

The following is an excerpt from the DHS directive to US 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 DHS's privacy impact assessment: "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."

The DHS said on Thursday it performed approximately 1,000 laptop searches from 1 October 2008 through to 11 August this year. 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.

Under the Obama administration, the DHS 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.

However, a better rule might be to require some evidence of wrongdoing — at least some suspicion of illegal activity &mdash before agents start to poke through your PC and assorted other gadgetry. This is what a bill introduced last year by senator Feingold would have done. The problem the Wisconsin Democrat wanted to address still exists. Let's just hope his desire to fix it does as well.