Groups warn travelers to limit laptop data, US Customs searching contents

Groups warn travelers to limit laptop data

Robert Lemos, SecurityFocus 2008-05-02

A recent federal district court ruling upholding seizures of electronic devices, such as laptops and iPhones, at the U.S. border has traveler- and civil-rights organizations worried that personal and sensitive data could be put at risk.

On Thursday, almost three dozen organizations — including civil-rights advocates, academic groups, and religious and minority groups — sent an open letter to four congressional committees, asking that their members consider legislation to "protect all Americans against suspicionless digital border inspections." The letter came ten days after a federal appeals court in the Central District of California ruled that border agents could search laptops without reasonable suspicion of illegal activity. The appeals court overturned a lower court’s ruling that stated the evidence of such searches would not be admissible in court.

While the case in question involved the discovery of what investigators believe is illicit pornography, the ability to search any person’s computer, personal digital assistants or cell phones violates the protections against "unreasonable searches" contained in the Fourth Amendment of the U.S. Constitution, the letter argued.

"In a free country, the government cannot have unlimited power to read, seize, store and use all information on any electronic device carried by any traveler entering or leaving the nation," the signatories stated in the letter.

The level of surveillance by the United States government has become an increasing worry to civil-rights advocates as well as professional, minority and religious groups that believe their members could be targeted. As part of its "War on Terror," the Bush Administration has instituted a program to eavesdrop on Internet and phone communications, an initiative that violates the Foreign Intelligence Surveillance Act (FISA) and has become the focus of a battle in Congress to craft a new law to govern such wiretapping.

In the latest battle, 34 organizations and seven technologists have asked both the Judiciary and Homeland Security Committees in the U.S. House of Representatives and the U.S. Senate to consider legislation that would limit digital border searches and make the process and conditions for such searches more open. The Electronic Frontier Foundation, a digital-rights group and one of the sponsors of the letter, has requested information on the conditions that would trigger a digital search by border agents.

"We don’t really know what the Department of Homeland Security’s procedures and practices are here," said Marcia Hofman, a staff attorney with the EFF. "And the courts are not holding them accountable. That’s why we want Congress to step in."

The case at the heart of the debate concerns whether evidence from the July 2005 search of a laptop owned by then-43-year-old Michael Arnold can be used by prosecutors. Returning from a three-week trip from the Philippines, Arnold was stopped by customs agents in Los Angeles International Airport and asked to show that his laptop was functioning, according to court filings. When custom agents inspected the computer, they found two folders on the desktop labeled "Kodak Pictures" and "Kodak Memories." Perusing through the files in those folders, the agents found pictures of two nude women and decided to conduct a more thorough investigation, which turned up suspected child pornography.

Arnold filed a motion to suppress the evidence. A federal district court in Los Angeles agreed with the defendant that the search had been unreasonable. However, in April, the U.S. Court of Appeals for the Ninth Circuit overturned the lower courts ruling and allowed the evidence from the search. In their ruling, the three-judge panel likened the process to a previous case where a cursory search of a van at the Canadian border revealed video camera that contained footage of a tennis match focusing "excessively on a young ball boy." A further search of the van found several photo albums depicting suspected child pornography, according to court documents.

While the search led to grim evidence of an alleged crime, the letter’s signatories argued that the power of unregulated digital searches will be abused. The ruling has worried international workers, whose laptops may contain proprietary company information, financial data or sensitive records. The Association of Corporate Travel Executives, one of the letter’s signers, recommended that workers not use their personal laptops for international travel and limit the amount of proprietary and personal data stored on any notebook computer taken across borders.

"In a time of heightened international security, it will take a brave Congress to rule that parties may not be subject to suspicionless searches," Susan Gurley, the executive director of ACTE, said in a statement.

Other organizations that signed the letter included the American Association of University Professors, the Multiracial Activist, Muslim Advocates and the Republican Liberty Caucus.

Following the ruling, there is nothing preventing authorities from a more comprehensive search program, said Fred Schneider, a privacy and security expert and professor of computer science at Cornell University.

"There is a drift in this country toward more surveillance and less civil liberties, and it is eroding step-by-step," Schneider said. "More people might complain if they were searching people at the Lincoln Tunnel, and I don’t see how this case is different from that."

The Electronic Frontier Foundation argues that searches of electronic devices at the border will likely only become more frequent, as forensics tools get significantly better. This week, Microsoft announced a set of software tools that fits on a USB drive and gives law enforcement officers the ability to run more than hundred commands quickly and automatically.

"It won’t be long before customs agents can efficiently perform a thorough search on every machine," Jennifer Granick, civil liberties director at the EFF, said in a discussion of the impact of the ruling. "So long as there are no protocols or oversight for these searches, every traveler’s personal information is at risk."

Encrypting the hard drive, having a separate account on the PC owned by the worker’s company, or traveling with a clean laptop and using an encrypted VPN to access data are all possibilities, Granick said. As an example of the difficulty that unregulated searches add to international travel, Granick uses a hypothetical "Alice," an attorney.

"Attorney Alice needs to have confidential attorney-client privileged information overseas," she wrote. "Before departure, she removes unnecessary information, encrypts her hard drive with strong crypto and sets up a login for a protected account and a travel account on her computer. To access the confidential data, one would need to first login to the protected account, and then open the encrypted files. Only Alice’s employer (The Law Offices of Bob) knows the passwords to the account and encrypted data, and keeps them secret until Alice arrives at her destination. Bob then sends the passwords to Alice in an encrypted email message."

Yet, Granick’s discussion is peppered with uncertainty. Because the U.S. government has not complied with requests for more information through the Freedom of Information Act (FOIA), the attorney cannot make any strong recommendations.

"There are no options that provide perfect privacy protection, but there are some options that reduce the likelihood that a legitimate international traveler’s confidential information will be subjected to arbitrary and capricious examination," she wrote.

If you have tips or insights on this topic, please contact SecurityFocus.

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