For several years laptops have been seized by officials at US borders. Until now, there has been little clue as to specific reasons behind the seizures, or how business travelers can subsequently retrieve their laptops. Finally, guidelines have been published. Intended for Customs and Borders Protection (CBP), a branch of the Department of Homeland Security (DHS), the guidelines aim to make clear the CBP”s powers, though many questions remain.
The guidelines state that the CBP can examine or copy sealed post, ”documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives and other electronic or digital storage devices” to ”ensure compliance with customs, immigration and other Federal laws at the border.”
Passports, driver”s licenses and government ID cards are among the documents which can be copied for legitimate government purposes, even if there is no suspicion of wrongdoing.
Susan Gurley, executive director of The Association of Corporate Travel Executives (ACTE). has been fighting for clearer information about the security of business travellers” data at US borders.
|
Susan Gurley, executive director of ACTE
”We”ve been trying to get this information for 18 months,” she says ”These policies were created to answer our questions and concerns. This is the first time that DHS has responded directly to critical questions regarding their laptop seizure policy. Prior to this, there was no accountability at all. It”s interesting that [the policies] would have not existed beforehand. They still seem to be a work in progress,” she said.
She added: ”The guidelines acknowledge the US government should not retain your information indefinitely once it turns out you are not involved in criminal activity. This is a very good thing.”
Many questions remain, however. While the guidelines state that the ”CBP will protect the rights of individuals against unreasonable search and seizure,” it does not define ”unreasonable”. Similarly, officers are allowed to retain originals or copies of documents and electronic devices for a reasonable period of time, but ”reasonable” remains undefined.
The guidelines state that agencies assisting the CBP are allowed to take up to 15 days, and after this period, may be granted extra time to deal with the data ”in increments of seven days” although how many seven-day extensions are allowed is not mentioned. There is also no mention of how a traveller”s data is stored while the CBP assess its risk, and business travellers are not told where the laptop or phone is being taken, which data is to be examined (or has been examined) or how data copied from your device is destroyed, or when.
So, what can you do if your laptop, iPhone or memory stick is seized at a US airport? Gurley says: ”There”s nothing in these guidelines about who to call if you have a question. There is no phone number, no website, no FAQs. There is nothing. There is a void of contact information.”
Lawyers carrying confidential information about their clients may be granted extra protection depending on the circumstances, but the report doesn”t mention anything specific about people”s financial or personal data, such as health records.
Gurley says the inherent weaknesses of the guidelines are summed up in DHS” concluding paragraph, which reads, ”This document is an internal policy statement of CBP and does not create any rights, privileges, or benefits for any person or party.” Neverthless, the guidelines are a step in the right direction. But what happens when the rules are broken? At a congressional hearing ACTE lobbied for an independent body to monitor the CBP, including how it tracks information and stores data, as well as providing appropriate training for customs and borer officials.
”You need a warrant to go into someone”s house; there has to be certain criteria met; there has to be a warrant. The police can”t just walk into your house and search it. But you don”t need a warrant when you”re walking across the border and carrying your office in your laptop,” says Gurley.