February 7, 2008 - Should the data contained on your laptop computer's hard drive, or stored on your iPod, or your cell phone be subject to search every time you enter the United States? The government says "yes", and the Customs and Border Patrol service is already searching some people's computers. But the Electronic Frontier Foundation (EFF) says "no", and they are filing a lawsuit today along with the Asian Law Caucus to end the practice.

The government's argument is simple. Whenever you enter the United States, you have to go through Customs. If you have luggage with you, Customs Agents are allowed to search it. The government is saying that such searches also apply to any data you may be carrying with you. Therefore, if you have a laptop computer, the Customs Agent can search it too.

But there are significant differences between data on a laptop and Cuban cigars that may be hidden in somebody's luggage. Computers offer an untold treasure trove of data on their users. They store lists of the websites their users visit. They may contain lists of passwords, copies of tax returns, and personal e-mail messages. If the computer belongs to the company you work for, then it may contain trade secrets and proprietary business information.

Likewise, cell phones contain records of text messages sent and received along with copies of phone numbers called and stored lists of contacts. Is any of this really the government's business?

The question is not simply academic. The government is already doing this; often seizing computers and holding them for several days or more.

The government's position is that they are looking for criminal activity. This includes everything from trafficking in child pornography to searching for terrorists. What they fail to mention is that it would be quite simple for terrorists or pornographers to send their information over the border via the internet. There is absolutely no need for them to physically carry that information over the border.

The lawsuit filed by the EFF is based on more than two dozen cases. 15 of these involved seizing laptops and/or cell phones; none of which apparently contained any incriminating data. None of those who had their electronic devices searched have had any charges filed against them.

According to a report in the Washington Post, Customs Agents have asked people to reveal their computer password information to them for their searches. In at least one case, the agent making an inspection of a computer had the owner turn it on and he then copied down a list of every website the owner had visited.

The practice is already having an impact on some businesses. Some companies are now having their traveling employees bring computers with blank hard drives with them when they go out of the country. If the employee needs access to office data, they are asked to connect their office computer via a secure internet connection.

The Customs Service is already having to defend the practice. It is involved in a separate lawsuit in the 9^th Circuit Court of Appeals. In that case, the government has argued that "It should not matter . . . whether documents and pictures are kept in 'hard copy' form in an executive's briefcase or stored digitally in a computer. The authority of customs officials to search the former should extend equally to searches of the latter."

Until the courts sort this mess out, travelers may want to take some precautions when traveling overseas with electronic devices. Before leaving the United States, you should back-up your computer hard drive. After doing this, you should delete any information from your computer that you would not feel comfortable being placed in the hands of the government. The same can be said of any stored address lists on your phone.

Prior to reentering the US, you should clear out your browser's history and cache. If you don't know how to do this, there are a number of software programs available that can help. Again, the same is true for your cell phone. If you don't want anyone reading your last text messages, clear them out.

by Jim Malmberg

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