February 9, 2008

Big Lizards Agrees With the WaPo Against a Border Security Measure!

Hatched by Dafydd

Here's a stunner: I find myself opposing a particular border-control measure we've been using to try to nab terrorists... and on the same side as the Washington Post and other liberal Democrats. The lake of fire is almost ready for ice skating.

It appears that Customs officers in airports have been seizing laptops, cell phones, and other electronic equipment from airline passengers (including some American citizens), with little to no evidence of criminal or terrorist activity or intention. They sometimes hold the electronic devices for months, reading (and sharing?) sensitive or proprietary information from them, or sometimes even wiping them clean.

While I can certainly understand using such aggressive tactics when there is reason to suspect that the device in question contains terrorism-related material or child pornography, or if the owner is on an enhanced-scrutiny list; but if the Post can be believed, the tactic is being used much too cavalierly for people with Moslem-sounding names departing for or arriving from places of interest, such as Jordan, Pakistan... or London:

A few months earlier in the same airport, a tech engineer returning from a business trip to London objected when a federal agent asked him to type his password into his laptop computer. "This laptop doesn't belong to me," he remembers protesting. "It belongs to my company." Eventually, he agreed to log on and stood by as the officer copied the Web sites he had visited, said the engineer, a U.S. citizen who spoke on the condition of anonymity for fear of calling attention to himself.

Maria Udy, a marketing executive with a global travel management firm in Bethesda, said her company laptop was seized by a federal agent as she was flying from Dulles International Airport to London in December 2006. Udy, a British citizen, said the agent told her he had "a security concern" with her. "I was basically given the option of handing over my laptop or not getting on that flight," she said....

"I was assured that my laptop would be given back to me in 10 or 15 days," said Udy, who continues to fly into and out of the United States. She said the federal agent copied her log-on and password, and asked her to show him a recent document and how she gains access to Microsoft Word. She was asked to pull up her e-mail but could not because of lack of Internet access. With ACTE's help, she pressed for relief. More than a year later, Udy has received neither her laptop nor an explanation....

Kamran Habib, a software engineer with Cisco Systems, has had his laptop and cellphone searched three times in the past year. Once, in San Francisco, an officer "went through every number and text message on my cellphone and took out my SIM card in the back," said Habib, a permanent U.S. resident. "So now, every time I travel, I basically clean out my phone. It's better for me to keep my colleagues and friends safe than to get them on the list as well."

The feds argue that their authority to protect the border allows searches of electronic media without any suspicion at all, just as they can search physical containers:

The U.S. government has argued in a pending court case that its authority to protect the country's border extends to looking at information stored in electronic devices such as laptops without any suspicion of a crime. In border searches, it regards a laptop the same as a suitcase.

"It should not matter . . . whether documents and pictures are kept in 'hard copy' form in an executive's briefcase or stored digitally in a computer. The authority of customs officials to search the former should extend equally to searches of the latter," the government argued in the child pornography case being heard by a three-judge panel of the Court of Appeals for the 9th Circuit in San Francisco.

But to me, at least, the problem is not searching; if Customs was performing just a simple search, I doubt many would object. The real problem is twofold:

  • The unreasonable failure to return property promptly when no terroristic materials or child pornography is found. Holding non-offending property for months, whether for spite or because the agency is so incompetent it doesn't get around to it in a timely manner, is not "searching;" it's confiscation. Customs has no authority to confiscate materials that are not illegal to pass through the border.
  • Failure to safeguard the security of legal proprietary and confidential information. Any such material seized must be held in the strictest confidence while an evaluation is made of its legality. The evaluation should not be unreasonably delayed, and a system must be in place to assure the owners that their confidential or secret information will be safeguarded. Customs should not be allowed to routinely copy sensitive materials, then leave the copies lying around unprotected.

So far as I can tell (and admittedly, I'm basing this entirely on the Washington Post being truthful), Customs meets neither of these two requirements: The agency holds electronic devices for months without explanation; and if they have any system to protect the security of sensitive information on seized devices, they certainly haven't told anyone about it.

Mark Rasch, "a technology security expert with FTI Consulting and a former federal prosecutor," notes some of the dangers:

"Lawyers run the risk of exposing sensitive information about their client. Trade secrets can be exposed to customs agents with no limit on what they can do with it. Journalists can expose sources, all because they have the audacity to cross an invisible line."

The response by the spokeswoman for U.S. Customs and Border Protection, Lynn Hollinger, does not exactly inspire confidence:

Hollinger said customs officers "are trained to protect confidential information."

Oh. Well!

While I'm not dogmatically opposed to racial profiling -- the Post reports that "Almost all [of two dozen cases] involved travelers of Muslim, Middle Eastern or South Asian background" -- when legal travelers with proper documentation, and especially U.S. citizens, are searched (whether physically or their electronic devices), the process should be made as painless as possible; security is vital, but so is liberty... we do need balance.

Instead, Customs appears to be going out of its way to assert its authority simply to seize anything they take a liking to, without regard to how much damage that does to innocent people, like Charlton Heston in Soylent Green. And they seem arrogantly unconcerned about other people's confidential material, as well.

I'm reminded (as was the Post reporter) of the original scope claimed by federal and state authorities for "asset forfeiture," the seizing of valuable property prior to trial, and often holding it indefinitely without even charging its owner. (The legal theory, which I believe most judges accepted, is that the inanimate property itself was being "charged with the crime," hence the owner need never be given any chance to defend his ownership at trial... which I always thought the apex of judicial activism.)

Such disproportionate and badly aimed "legal looting" was eventually overturned by the courts, after too many instances of entire buildings, boats, and rental property being seized by drug agents after some trivial amount of marijuana or other drugs were found on the premises, even when it was clearly without the knowledge or consent of the owner -- a renter grows a pot plant in his apartment, the entire apartment complex is seized; an illegal squatter shoots up in a commercial property, the entire industrial building is taken away from its owners; and my favorite: A single joint was found in the pocket of the abandoned coat belongint to a crewman who had jumped ship several ports earlier... and the feds attempted to seize the entire multi-million-dollar cargo ship. (I remember that specific federal looting was thrown out by the courts.)

I hope we won't have to wait for such court action -- which could take years -- for Customs to stop treating ordinary Americans like terrorists-in-waiting, from whom they can seize property, trade secrets, and contact information on the basis of a hunch. (Just a hunch of my own; has anybody raided the homes of any Customs agents, to see whether any of them have put those "seized" assets to personal use?)

The first border-related task of the new Republican president in 2009 should be to sort out our entire Customs and Border Patrol authorization, so that both private individuals and the agents themselves clearly understand what they can and cannot do, and under what circumstances. We need security; we need liberty; but there is no reason to believe the two are incompatible.

Hatched by Dafydd on this day, February 9, 2008, at the time of 7:21 PM

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The following hissed in response by: Baggi

You know, I just typed up a big long response and realized most of it i'm not allowed to talk about.

In short, ive worked on the border for the past 12 years. Rarely do we seize laptops where I work and its pretty busy where I work. Maybe at most we seize 1 or 2 a month. The seizures ive been a part of have been given back the following day, because nothing was there.

The rest I can't really speak on.

The above hissed in response by: Baggi [TypeKey Profile Page] at February 9, 2008 11:24 PM

The following hissed in response by: eliXelx

"We had rather, in the ways of Good, follow our enemies, than in the ways of Evil walk with our friends." Jan Huss

Daffydd; I ended my last post to you with these words, and I begin with them again to point out a state of mind that overtook the "Left" a long time ago, and is presently causing mayhem on the "Right".

Simply put it is this; things are not right or wrong, Good and Evil, because those who espouse or champion them are our friends or our enemies, but because it is WE, each one of us, who is required to decide what is Good, what is Evil, and fight for or against it.

Here you are, surprised at yourself for agreeing with the the enemy, the WAPO, when really it was your own prejudice, and mine, that only allowed you to see the players, and not the game.

Thus for e.g. one must laud Muslims for NOT teaching sex ed to their children in kindergarten; Not criticise them for wearing headscarves; accept that they teach religion to their kids in schools; yet at the same time not deny that their religion forces some of them to be our enemy.

All these are rights that we claim for ourselves, including the right to be absolute master in one's own (albeit virtual) house; and they must be rights that we extend to our erstwhile enemy!

Not everything that Mccain says is Good, not everything Hillary says is bad; "the fault is not in our stars but in ourselves..."

I urge all those who read this and other blogs to go into the next months asking themselves "What is Good, and what is Evil?" and then to look again at Huss' dictum!

The above hissed in response by: eliXelx [TypeKey Profile Page] at February 10, 2008 8:03 AM

The following hissed in response by: Mr. Michael

IF, and I mean IF they have solid information that the laptop/pda/phone has information that WILL be used to harm Americans in an attack, THEN I would support the physical removal of the device. But it is so simple these days to do a complete mirror of a hard-drive that any more delay than a few minutes to ensure it's really a functioning computer in line is just out of line. IF the Government wants to copy a harddrive, let them do so ONLY when they have a functioning process to protect valid personal information, and a way to prove that the information has been destroyed as soon as it has been declared void of threatening materials.

You want to check to see if any Customs Agents have any hardware in their homes? How about a check on their stock trades.

I love the idea of a serious Border Check, but confiscation of personal property is just theft.

The above hissed in response by: Mr. Michael [TypeKey Profile Page] at February 10, 2008 8:04 AM

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