Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

February 20, 2011

Can You Frisk a Hard Drive?

By David K. Shipler
(Published in The New York Times Week in Review Feb. 20, 2011)

If you stand with the Customs and Border Protection officers who staff the passport booths at Dulles airport near the nation’s capital, their task seems daunting. As a huge crowd of weary travelers shuffle along in serpentine lines, inspectors make quick decisions by asking a few questions (often across language barriers) and watching computer displays that don’t go much beyond name, date of birth and codes for a previous customs problem or an outstanding arrest warrant.
The officers are supposed to pick out the possible smugglers, terrorists or child pornographers and send them to secondary screening.

The chosen few — 6.1 million of the 293 million who entered the United States in the year ending Sept. 30, 2010 — get a big letter written on their declaration forms: A for an agriculture check on foodstuffs, B for an immigration issue, and C for a luggage inspection. Into the computer the passport officers type the reasons for the selection, a heads-up to their colleagues in the back room, where more thorough databases are accessible.

And there is where concerns have developed about invasions of privacy, for the most complete records on the travelers may be the ones they are carrying: their laptop computers full of professional and personal e-mail messages, photographs, diaries, legal documents, tax returns, browsing histories and other windows into their lives far beyond anything that could be, or would be, stuffed into a suitcase for a trip abroad. Those revealing digital portraits can be immensely useful to inspectors, who now hunt for criminal activity and security threats by searching and copying people’s hard drives, cellphones and other electronic devices, which are sometimes held for weeks of analysis.

Digital inspections raise constitutional questions about how robust the Fourth Amendment’s guarantee “against unreasonable searches and seizures” should be on the border, especially in a time of terrorism. A total of 6,671 travelers, 2,995 of them American citizens, had electronic gear searched from Oct. 1, 2008, through June 2, 2010, just a tiny percentage of arrivals.

“But the government’s obligation is to obey the Constitution all the time,” said Catherine Crump, a lawyer for the American Civil Liberties Union. “Moreover, controversial government programs often start small and then grow,” after which “the government argues that it is merely carrying out the same policies it has been carrying out for years.”

One of the regular targets is Pascal Abidor, a Brooklyn-born student getting his Ph.D. in Islamic studies, who reported being frisked, handcuffed, taken off a train from Montreal and locked for several hours in a cell last May, apparently because his computer contained research material in Arabic and news photographs of Hezbollah and Hamas rallies. He said he was questioned about his political and religious views, and his laptop was held for 11 days.

Another is James Yee, a former Muslim chaplain at the Guantánamo Bay prison, who gets what he wryly calls a “V.I.P. escort” whenever he flies into the United States. In 2003, Mr. Yee was jailed and then exonerated by the Army after he had conveyed prisoners’ complaints about abuse, urged respect for their religious practices and reported obscene anti-Muslim caricatures being e-mailed among security staff.

Years later, he evidently remains on a “lookout” list. A federal agent stands at the door of Mr. Yee’s incoming plane, then escorts him to the front of the passport line and to secondary screening.

Arriving in Los Angeles last May from speaking engagements in Malaysia, he was thoroughly questioned and searched, he said, and his laptop was taken for three or four hours. He was not told why, but after it was returned and he was waiting to rebook a connecting flight he’d missed, a customs officer rushed up to the counter. “We left our disk inside your computer,” he quoted her as saying. “I said, ‘It’s mine now.’ She said no, and sure enough when I took the computer out, there was a disk.”

Customs won’t comment on specific cases. “The privacy rights that citizens have really supersede the government’s ability to go into any depth,” said Kelly Ivahnenko, a spokeswoman.

In general, “we’re looking for anyone who might be violating a U.S. law and is posing a threat to the country,” she explained. “We’re in the business of risk mitigation.”

Yet the mitigation itself has created a sense of risk among certain travelers, including lawyers who need to protect attorney-client privilege, business people with proprietary information, researchers who promise their subjects anonymity and photojournalists who may pledge to blur a face to conceal an identity. Some are now taking precautions to minimize data on computers they take overseas.

“I just had to do this myself when I traveled internationally,” said Ms. Crump, the lead attorney in a lawsuit challenging the policy on behalf of Mr. Abidor, the National Association of Criminal Defense Lawyers and the National Press Photographers Association.

During a week in Paris, where she lectured on communications privacy, she had legal work to do for clients, which she could not risk the government seeing as she returned. “It’s a pain to get a new computer,” she said, “wipe it completely clean, travel through the border, put the new data on, wipe it completely clean again.”

In simpler days, as customs merely looked for drugs, ivory, undeclared diamonds and other contraband that could be held in an inspector’s hand, searches had clear boundaries and unambiguous results.

Either the traveler had banned items, or didn’t. Digital information is different. Some is clearly illegal, some only hints at criminal intent, and under existing law, all is vulnerable to the same inspection as hand-carried material on paper.

Most pirated intellectual property and child pornography, for example, cannot be uncovered without fishing around in hard drives. “We’ve seen a raft of people coming from Southeast Asia with kiddie porn,” said Christopher Downing, a supervisor at Dulles. If a person has been gone only two or three days and pictures of children are spotted in a bag, he explained, the laptop is a logical candidate for inspection. Such searches have been fruitful, judging by the bureau’s spreadsheets, which list numerous child pornography cases.

But terrorism is an amalgam of violence and ideas, so its potential is harder to define as officers scrutinize words and images as indicators of attitudes, affiliations and aspirations. Random searches are not done, Mr. Downing said, although courts so far have upheld computer inspections without any suspicion of wrongdoing. In practice, something needs to spark an officer’s interest. “If you open up a suitcase and see a picture of somebody holding an RPG,” he noted, referring to a rocket-propelled grenade, “you’d want to look into that a little more.”

The search power is preserved by its judicious use, Mr. Downing said. “If you abuse it, you lose it.” he added. The A.C.L.U. doesn’t want customs to lose it, Ms. Crump explained, but just wants the courts to require reasonable suspicion, as the Supreme Court did in 1985 for examinations of a person’s “alimentary canal.” The court distinguished such intrusive inspection from “routine searches” on the border, which “are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” The justices added in a footnote that they were not deciding “what level of suspicion, if any, is required for nonroutine border searches” of other kinds.

Laptop searches should be considered “nonroutine,” Ms. Crump argues, something the United States Court of Appeals for the Ninth Circuit declined to do in 2008, when it reversed a judge’s decision to suppress evidence of child pornography obtained during a suspicionless airport computer search.

With the search powers intact, Mr. Abidor no longer dares take the train home from his studies at McGill University in Montreal. He doesn’t want to be stranded at the border, waiting hours for a bus, as he was in May. So on Dec. 22, his father drove up from New York to get him for vacation. The men were ordered to a room and told to keep their hands on a table while customs officers spent 45 minutes searching the car, and possibly the laptop, Mr. Abidor said. “I was told to expect this every time.”

No comments:

Post a Comment