Does The Travelers’ Privacy Protection Act adequately safeguard us?

You’ve probably heard about the Travelers’ Privacy Protection Act of 2008, a proposed new law that would prevent customs agents from confiscating your laptop computer at the border. But what does the law actually say?

In a post earlier this month, my colleague Charlie Leocha laid out the basics of the bill for us, but as the old adage goes, “the devil’s in the details.”

In the findings of the act it states,

Unlike any other ‘closed container’ that can be transported across the border, laptops and similar electronic devices can contain the equivalent of a full library of information about a person, including medical records, financial records, e-mails and other personal and business correspondence, journals, and privileged work product.

From that finding it seems clear that the sponsors of the law recognize the very private nature of the information stored in our electronic devices in the 21st Century, and the difference between a suitcase or box, and a laptop computer or PDA.

In my July article, Warning: US Customs and Border Protection may confiscate your laptop and PDA, I told the story of Bill Hogan, a freelance journalist, who returned home from Germany at Washington’s Dulles International Airport, only to have his laptop seized for two weeks under the Customs and Border Patrol’s “random inspection of electronic media.” These random seizures by CBP agents have included laptops, digital cameras, cellphones and other electronic devices, without search warrants, or probable cause.

When first reading The Travelers’ Privacy Protection Act of 2008 I thought the days of the CBP’s “random inspection program of electronic media” would be ended. But now that I’ve given the Act further study, I’m not so sure.

According to the proposed law, in order for a US resident’s (US residents are citizens and legal residents; both immigrant and non-immigrant.) electronic equipment to be searched at the border, Department of Homeland Security (DHS) agents must have a reasonable suspicion that the resident is carrying contraband, goods or persons in violation of the law, or is not entitled to enter the US under the laws enforced by DHS.

To seize a US resident’s electronic device at the border for search purposes, DHS or another law enforcement agency must first obtain a warrant based on probable cause, or the Foreign Intelligence Surveillance Court must authorize the seizure. The major exceptions to this rule are if the search or seizure occurs incident to an arrest, or is an established exception to the warrant requirement of the Fourth Amendment to the US Constitution.

Also, according to the proposed law, when DHS searches your electronic equipment, US residents get to watch DHS search it, either at the border or anywhere else DHS takes it. During the search DHS must make sure that only you and DHS get to see the contents of your equipment.

Those appear to be wonderful changes from current law, but I think we’ve got to look at this a little bit closer.

The problem with the act, as I see it, is in this definition:

“The term ‘seizure’ means the retention of electronic equipment or copies of any contents of electronic equipment for a period longer than 24 hours.”

In other words, if DHS has a “reasonable suspicion” they get 24 hours to examine your electronic devices without a warrant. Not only that, they don’t have to search your device at the border. They can take it to another DHS facility, and if you want to see them search it, you’ve got to go with them.

So what’s wrong with that?

What’s wrong is that “reasonable suspicion,” meaning a suspicion that has a “particularized and objective basis,” isn’t “probable cause.” What’s wrong is that while “reasonable suspicion” is a recognized legal standard in United States law, it requires less evidence than probable cause, the legal standard for obtaining arrest and search warrants.

This proposed law creates, through it’s wholly “artificial” definition of “seizure,” the right of DHS to go on a 24 hour “fishing expedition” into your private life, as articulated in the detailed information on your laptop or other electronic devices, before it needs to obtain a warrant or court order to continue the search.

According to the act, at the end of the 24 hours, DHS has to stop their search unless they’ve obtained a warrant or order permitting them to continue, but even if they don’t yet have a warrant or order, they don’t have to return your equipment just yet. DHS has three additional days to prepare and obtain a warrant, 21 days if applying for a Foreign Intelligence Surveillance order, or an unlimited time period as long as the FIS order is pending in court, and they can use the information gleaned from their initial 24 hour warrantless search to obtain the warrant or order to search further.

According to Executive Director, Susan Gurley, of the Association of Corporate Travel Executives (ACTE), this Act requires US Customs and Border Protection (CBP) officials to demonstrate reasonable suspicion – and to obtain a warrant – before seizing a laptop or other electronic device and randomly copying the data it contains.

Unfortunately, ACTE’s description of the law’s requirements is incorrect. Whether you call it search or seizure, even in the first 24 hours, DHS holds and controls your laptop and other device, and gets to maintain that possession while they apply for a warrant or court order. That sure seems like seizure to me, with the first 24 hours or more being warrantless. This Act’s illogical split between the need for only “reasonable suspicion” to initially search your equipment, then “probable cause” to continue the search in subsequent days makes absolutely no sense to me whatsoever.

If I were Ms. Gurley and the ACTE, I would rethink my position and ask Senators Feingold and Cantwell to eliminate the dual standard.

If after 24 hours the search standard is “probable cause,” why not make it the only standard?

After all, that’s the standard for a search warrant, and if this proposed law is intended to really protect our privacy from unwarranted governmental intrusion, that’s the sole standard the act should employ.

While most of the law’s remaining provisions are good, another troubling one has to do with profiling.

Profiling, using race, ethnicity, national origin, or religion in selecting US residents for searches of their electronic equipment, or in determining the scope or substance of a search is prohibited.

Or maybe not. It permits the use of such criteria as long as reasonable suspicion is present, based on these and other factors unrelated to race, ethnicity, national origin, or religion. My read of Section 7, “Prohibition on the Profiling” of the law is that DHS will be able to use profiling, but to a lessor extent than now permitted, and only if there is real suspicion the person is violating the law.

Senators Feingold and Cantwell, who sponsored the The Travelers’ Privacy Protection Act of 2008, should reexamine the law in its entirety, and to specifically amend the search and seizure portions of this legislation.

The “reasonable suspicion” standard should be eliminated. In order for DHS to search and/or seize the electronic equipment of US residents when returning home from foreign lands, they should be required to show probable cause, and obtain a search warrant, or FIS order. I believe this change to the law would go a long way in restoring the spirit of the Constitution at the border, while not substantively inhibiting DHS from protecting the country from terrorists and criminals.