Legislation looks to patch privacy protections at borders

A bill set before Congress would require DHS officials to have a reasonable level of suspicion about you, personally, before they searched or seized your laptop, cell phone, digital camera or other electronic gear at the US border.

Last Friday, Sen. Russell Feingold (D-WI), Sen. Maria Cantwell (D-WA) and Rep. Adam Smith (D-WA) introduced the Travelers Privacy Protection Act on Friday to, as Cantwell put it, "strike the right balance of keeping Americans safe while protecting their right to privacy."

The bill, which is co-sponsored in the Senate by Daniel Akaka (D-HI) and Ron Wyden (D-OR), would bar the selection of travelers for "electronic searches" on merely the basis of race, ethnicity, religion or national origin; would require probable cause and a warrant before seizing gear; and includes restrictions on the disclosure and handling of any information pulled from seized gear.

A statement from Feingold's office cited two years' of reports stating that US citizens returning from international travel -- particularly citizens of Muslim, South Asian, or Middle Eastern heritage -- were undergoing extensive searches of their belongings and sustained grilling about their friends, habits, social lives, and political beliefs, usually with no indication of why they might have been singled out.

Shirin Sinnar, a staff attorney for the Asian Law Caucus, noted that such searches go far beyond the law.

"As a US citizen, your rights at the border are different than they are at home, but you still have rights," Sinnar told BetaNews -- among others, the Fourth and First Amendments still apply. According to Sinnar, the most important aspect of the Feingold bill is that it would require that border agents have some level of suspicion about a particular individual, rather than equating national origin or belief system with trouble.

The Senate has taken an interest in new Dept. of Homeland Security border practices for several months, as evidence mounted that gear was being seized and data copied indiscriminately. During Senate Judiciary hearings last spring, Feingold crossed swords with DHS Secretary Michael Chertoff over the matter.

In June, DHS refused to send witnesses to a hearing by a Senate Constitutional subcommittee looking into the matter. A statement by DHS later in the summer revealed that the agency was authorizing border agents to search and even take away laptops without "individualized suspicion" (for instance, without a preliminary security screening that raised issues), and that next to no provision existed for DHS or third parties to protect whatever information -- e-mail, photos, business documents, personal photos, tax returns, browser history -- they might find on the machines.

Civil liberties groups have also taken a strong interest in what rules or guidelines might currently be in place regarding such searches, and earlier in the year the Electronic Frontier Foundation and the Asian Law Caucus filed a massive Freedom of Information Act request seeking more information.

One 661-page data dump later, the organizations concluded that multiple versions of some policy statements existed, while other activities such as intense questioning seemed to be covered by no policy at all. Meanwhile, a letter directly from DHS to Feingold's office was, according to the senator's office, "full of internal contradictions" about policy and practice.

It wasn't always this way. However inconsistent they might be, changes introduced last year to Customs and Border Control policies reversed the reasonable-suspicion requirements that had been in place for border agents since the 1980s. In addition, changes in information-sharing policy between DHS and other agencies amounted to a de facto end run around the Fourth Amendment, allowing DHS to do warrantless searches and share the results with other agencies or even private individuals.

Members of Congress involved with the bill indicated that the new DHS practices are, among other things, a waste of time and manpower. Sen. Feingold said, "Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy. This bill will bring the government's practices at the border back in line with the reasonable expectations of law-abiding Americans."

Related issues such as extensive questioning aren't covered by the current draft of the Feingold bill. Still, Sinnar calls it "a step in the right direction." The bill now goes to the House Homeland Security and Senate Judiciary committees for further consideration.