Privacy vs. border security: Critics say laptop searches cross the line

Jawad Khaki, a corporate executive from Sammamish, was returning home from a business trip to Ireland and Germany last year when a customs agent at the airport asked him to turn on his cellphone.

He already had told the agent in detail where he had traveled and why, so when the agent began looking over the to-do list and calendar in his phone, Khaki was shocked.

"It was an invasion of privacy," he said. "I thought it was going too far."

Khaki's story joins what seem to be growing numbers of similar reports from people — many of them Muslims or of Middle Eastern or South Asian descent — who say that their laptops, cellphones or other electronic devices were searched or seized at airports or U.S. border crossings, and that they've been questioned extensively.

The heightened scrutiny is prompting concern and raising questions among a diverse array of groups, from Muslim associations to law firms, corporate groups and technology organizations.

Among their questions: What if a traveler's laptop includes corporate secrets, a lawyer's confidential documents, a journalist's notes from a protected source, or personal financial and medical information?

Some advocacy organizations say they've asked the U.S. Department of Homeland Security how often such searches or seizures take place, who gets selected, what the government does with any copied data, who has access to it, what safeguards are in place, and how the data is stored and eventually destroyed.

But so far, the organizations say, they haven't gotten clear answers. Meanwhile, two groups have filed a lawsuit to get that information, and some businesses are taking a variety of steps to minimize their risks.

Even Congress has gotten involved, holding a hearing last month on the subject of "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel."

"This has the potential for a chilling effect," said Ken Myer, president and CEO of the Washington Technology Industry Association, which represents about 1,000 companies in this state. "If you look at a laptop that is carrying trademarks, confidential information, ... what kind of liability does that present to the company?"

Inspection limits sought

Officials from U.S. Customs and Border Protection, which is part of the Department of Homeland Security, say their officers follow strict guidelines to safeguard confidential and personal information, and that their ability to conduct such searches is crucial to keeping the nation safe.

The department doesn't keep seized electronics unless it suspects wrongdoing, and any U.S. citizen's information that's copied is kept only if it's relevant for criminal or national-security investigations, said a Customs and Border Protection spokeswoman, Lynn Hollinger.

Federal law and the courts have long regarded searches of vehicles, luggage and materials at borders as routine, meaning agents don't first need reasonable suspicion or warrants.

In April, the 9th U.S. Circuit Court of Appeals ruled that customs officials may inspect laptops and other personal electronic-storage devices without suspicion. The ruling was similar to a 2005 decision by the 4th U.S. Circuit Court of Appeals.

But as more and more travelers carry laptops and other electronics with them, various organizations are urging Congress to place limits on the inspection of such devices.

Susan Gurley, executive director of the Alexandria, Va.-based Association of Corporate Travel Executives, contends that laptops aren't the same as luggage because laptops typically carry far more information and the contents may be confidential or highly personal. They are an extension of a person's professional and personal identity, she said.

"When your luggage is looked at, you get your luggage and all your clothes back. The difference with a computer," she said, "is that you don't know if all the information that has been downloaded has been returned."

"Not a random search"

In addition to seeing his cellphone searched last year, Khaki said he's been questioned extensively by customs or border agents each of the eight times he returned to the U.S. from abroad in the past year.

They've asked about mosques he's attended, birth dates of relatives and whom he met with on his travels.

Jameel Hyder, a manager at a technology company who lives in Sammamish, says he also has been stopped each of the five times he returned to the U.S. from various trips over the past two years.

On his return from a business trip last November, customs agents asked him to boot up his laptop so they could look through his photos and asked him questions about which mosque he attended and activities he's involved in.

"The one thing that's pretty obvious is it's not a random search," Hyder said.

A Seattle-area imam, or Muslim prayer leader, said he, too, was asked to turn on his laptop to show photos to customs agents when he returned home last summer.

The imam, who asked that his name not be used because he did not want to draw additional attention, also said he was asked to fill out a form asking which organizations he's involved in and what he thought of U.S. foreign policy.

Khaki, Hyder and the imam are all U.S. citizens.

Michael Milne, a spokesman for Customs and Border Protection in Seattle, said he knows of no such form and that asking travelers their views on foreign policy is "certainly not something we would do on a routine basis."

Nor do agents focus on travelers because of their religion or ethnicity, he said.

In written testimony for last month's Senate subcommittee hearing, Customs and Border Protection deputy commissioner Jayson Ahern said searches of electronics have led to the arrests of people possessing child pornography. Agents also have found data about nuclear material and explosives that have helped them remove dangerous people from the U.S. or kept them from coming in.

Treating data stored on electronic devices differently from documents carried in luggage "would provide a great advantage to terrorists and others who seek to do us harm," Ahern said.

Legal actions in works

Two organizations — the Electronic Frontier Foundation and the Asian Law Caucus — together filed a lawsuit earlier this year to determine the scope of such searches, saying at the time that the Department of Homeland Security had not responded to previous requests for records.

In the meantime, some businesses already have taken precautions.

Locally, the law firm of Davis Wright Tremaine is encouraging its attorneys to minimize the confidential documents they take on electronic devices when traveling across borders.

For lawyers and their clients, a big concern is whether they may be waiving attorney-client privilege by allowing officers to view their laptop contents.

But if they refuse permission, they run the risk of their laptop being confiscated, said Randy Gainer, a partner at Davis Wright Tremaine. "You're on the horns of a dilemma."

A spokeswoman for Boeing said the company has long been concerned about employees traveling with company information in their laptops and that it offers them "clean" laptops with no more information than they need on business trips.

Microsoft and Starbucks declined to comment on the issue.

U.S. Sen. Russell Feingold, D-Wis., who convened the Senate subcommittee hearing, is considering legislation to require reasonable suspicion for border electronics searches; to let the public know what rules are in place for copied data; and to ensure that racial, religious or ethnic profiling doesn't occur.

"While there is disturbing evidence that Muslim and Arab Americans are being targeted for these searches," Feingold said, "no one is exempt."

Janet I. Tu: 206-464-2272 or jtu@seattletimes.com