Feingold: Bush admin secrecy can't outweigh travelers' privacy
Nick Juliano
Published: Wednesday June 25, 2008

Print This  Email This

If you enter or leave the United States carrying a laptop, flash drive or cell phone, the government can collect and store a massive amount of personal information without first obtaining a warrant, having probable cause or even suspecting you of anything.

During a subcommittee hearing Wednesday, Sen. Russ Feingold (D-WI) said the government needs to institute safeguards to protect Americans' privacy rights, and he accused the Department of Homeland Security of ducking from scrutiny of its overreach in searching electronics. DHS refused to send a representative to the hearing and secretary Michael Chertoff did not answer written questions from Feingold.

"Once again, this administration has demonstrated its perverse belief that it is entitled to keep anything and everything secret from the public it serves and their elected representatives, while Americans are not allowed to keep any secrets from their government," he said. "That's exactly backwards."

Witnesses before the Senate Judiciary Committee's subcommittee on the Constitution represented privacy advocates and lawyers defending the searches along with civil rights activists alleging that customs agents discriminated against Muslim Americans.

Fourth Amendment protections are less stringent at points of entry into the US. Courts have ruled that routine searches are permissible because the government's interest in keeping dangerous and illegal materials out of the country makes such searches "reasonable" without additional justification. For more invasive searches, such as strip-searches and x-rays, a customs agent must be able to show the person they are searching is likely a criminal.

Feingold argued that searching a laptop hard drive is closer to performing a strip search than simply riffling through someone's brief case, because of the exceptional amount of data included on modern laptops.

"The invasion of privacy represented by a search of a laptop differs by an order of magnitude from that of a suitcase," he said. " I guarantee you this: neither the drafters of the Fourth Amendment, nor the Supreme Court when it crafted the 'border search exception,' ever dreamed that tens of thousands of Americans would cross the border every day, carrying with them the equivalent of a full library of their most personal information."

The laptop seizures have proved especially worrisome for business travelers, who could be crippled if they were unable to access data on a laptop seized by the government, said Susan Gurley, executive director of the Association of Corporate Travel Executives.

A survey of business travelers found that 7 percent had their laptops or other electronic device seized by the government, Gurley testified.

The committee's ranking Republican, Sen. Sam Brownback (R-KS) defended the administration's random, suspicionless searches of laptop computers. It took him just over a minute during his opening remarks to play the 9/11 card, observing that plotter Zacarias Moussaoui used the same kind of computer favored by scores of business travelers, students and other law-abiding Americans.

"We also know that terrorists take advantage of this kind of technology," Brownback said, referring to laptop computers. "Mr. Moussaoui, for example, kept information on his laptop computer that if discovered might've prevented the Sept. 11 terror attacks. That's a sobering thought."

Feingold said the problem was that DHS had no standards governing whose laptop it would search, what it could copy from the computers, how long it would keep that data or what it would do with it. Without any guidelines or oversight, the potential for abuse is limitless he said.

US News & World Report examined that laptop search issue in an article Tuesday, pointing out the potential if other countries followed the lead of the US.

It makes practical sense to X-ray the contents of checked and carry-on luggage, which could pose an immediate danger to airplanes and their passengers. "Generally speaking, customs officials do not go through briefcases to review and copy paper business records or personal diaries, which is apparently what they are now doing now in digital form—these PDA's don't have bombs in them," says Marc Rotenberg, executive director of the Electronic Privacy Information Center. More troubling is what could happen if other countries follow the lead of the United States. Imagine, for instance, if China or Russia began a program to seize and duplicate the contents of traveler's laptops. "We wouldn't be in a position to strongly object to that type of behavior," Rotenberg says. Indeed, visitors to the Beijing Olympic Games have been officially advised by U.S. officials that their laptops may be targeted for duplication or bugging by Chinese government spies hoping to steal business and trade secrets.
Also at issue was who was being searched at border check points. Farhana Y. Khera, president of Muslim Advocates, told of several complaints her organization has received, including from a vice president of a major corporation who was stopped and questioned when returning to the US on eight separate occasions since January 2007, having his cell phone and belongings searched each time. Another woman Khera told about was asked about her views on the presidential race after a customs agent found a book on one of the candidates in her bag.

"We have reason to believe these stories are not isolated," she said, "but rather suggest a troubling pattern or targeting Americans who are Muslim or of Arab or south Asian descent."