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DHS: Expect your computer to be seized without suspicion
By Scott M. Fulton, III | Published August 28, 2009, 3:55 PM
In what was presented to the public this week as a clarification of its privacy policy, the US Dept. of Homeland Security published a paper referring to new guidelines for its immigration and customs agents regarding how they may conduct border searches of travelers' computers and electronic media. Clarifying the existing law, both sets of guidelines reiterated the department's policy created during the previous administration: Agents may seize, detain, and/or retain individuals' PCs and media without having reason to suspect that those people or those machines and devices are connected with a crime.
"ICE [Immigration and Customs Enforcement] Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws set forth herein," states the new policy for immigration authorities published last August 18 (PDF available here). "Assistance to complete a border search may be sought from other Federal agencies and non-Federal entities, on a case by case basis, as appropriate."
The
guidelines for Customs & Border Patrol (CBP) agents says pretty
much the same thing, adding that whenever a CBP agent encounters
technical trouble figuring out how a mechanism works, or what the
meaning of some piece of information is, he can seek help from other US
government sources. "In such situations, Officers may transmit
electronic devices or copies of information contained therein to seek
technical assistance from other federal agencies," reads the CBP
guidelines (PDF available here).
What's been a subject of contention ever since the government tightened border inspection policies in the wake of 9/11 hasn't been so much agents' rights to act without suspicion (although for some, that already crosses the line) as the authority DHS grants them to transmit the information they find elsewhere, under the auspices of "seeking help." Both guidelines now state that agents may only seek help from other federal sources, but they are not explicit with regard to what level -- for example, whether a private consultant under retainer for the FBI would qualify.
In their assessment of the extent of the risks this clarified policy might pose to citizens' and visitors' personal privacy, published last Tuesday (PDF available here), both border agencies, acting jointly, identified six specific areas: "(1) travelers may need additional information regarding the authority [agents have] to conduct border searches; (2) the traveler may be unaware of the viewing or detention of his/her information by CBP and ICE; (3) personally identifiable information (PII) may be detained where it is not needed; (4) PII may be misused by CBP and ICE officers; (5) CBP and ICE may disclose PII to other agencies that may misuse or mishandle it; and (6) new privacy risks may arise as the technology involved in this activity is ever-changing."
In other words, individuals may not be fully informed as to the extent of agents' authority, and what safeguards there may be to protect identifying information from falling into the hands of someone who can misuse it -- the privacy threat here being that the traveler may not know what the threat really is. The solution, DHS asserts, is by making that information about the private information that could be misused, public -- specifically, by publishing it in the Federal Register.
Under the heading, "Principle of Transparency," the DHS report explains, "When ICE or CBP retain information from electronic devices, that information may be subject to the requirements of the Privacy Act. The Privacy Act requires that agencies publish a System of Records Notice (SORN) in the Federal Register describing the nature, purpose, maintenance, use, and sharing of the information. This PIA and the several SORNs published by DHS provide notice of the retention of PII at the border and the retention of some of the contents of electronic devices."
So at the very least, an explanation of the events surrounding the detention or seizure of travelers' computers may be available online to those travelers (along with everyone else) on GPOAccess.gov. However, the Department goes on to say, the extent of the information shared online this way may be limited, especially with regard to how much the detained information is being shared, as well as with whom. This is for the good of any investigation that may arise.
"Because notifying the traveler of the sharing of information could impede an investigation or other law enforcement or national security efforts, CBP and ICE do not make the information sharing process fully transparent to the public," the report states. "To ensure the protection of personal data without compromising the investigation, CBP and ICE have instituted strict oversight and review processes. Generally speaking, information, including PII, will be shared with other agencies where CBP and/or ICE require subject matter expertise, decryption, or translation."
Those oversight and review processes will make the sharing of that information with other agencies legal and permissible under the Privacy Act of 1974. Appropriate safeguards and audit trails will be kept to track when and where information is exchanged, but for the sake of privacy, that information will be kept private.
We have to thank Bush for this. Now Obama gets to take it to another level. And he is on all Fronts..
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|so much for just cause and reasonable suspicion. Sounds to me like an open door for unwarranted theft of personal property to me. Does anyone else but me hear Jackboots?
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|How come EFF is very quiet on this ? This will make a LOT of people who voted for the big O, very very unhappy...it's made me mad....
And if this is the freedom that we are forcefully trying to export to other countries ??? they probably are far better off in their countries already....
But I will not be suprised if RIAA/MPAA had anything to do with this....
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|The EFF is probably still digesting this.
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|Only A GIFT ECONOMY can save us - FREE WATER, FREE FOOD, FREE LAND, FREE GOLD, FREE HEALTH, FREE EDUCATION... are our real BIRTHRIGHTS! Working out of passion for free is motivating (look wikipedia)! So, the ABUNDANCE is for all 7 billion people of the world - no need for political, economical, religious or any other kind of manipulation! No need for bordres (we are all going to become like diplomates!) - PERSONAL SOVEREIGNTY and new LAWS in mothers' ethics spirit we need!
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|As long as our schools are still successful in indoctrinating children that "we live in a free country" everything will be fine. Perception is the reality. Most Americans think they live in a free country and that's all that matters.
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|They don't even bother anymore. Instead they have them pledging allegiance to large pictures of Obama.
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|obviously that was a false hyperbole
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|What you people seem to forget, is that that the Carter and Clinton Administrations also allowed warrant-less wiretapping, and we weren't even at war at the time....you really need to stop with the derogatory remarks about Bush because numbnut Obama is so much worse. Bush did what he thought was best to keep us safe...Hussein does what is best for Hussein. Pretty pathetic that people can't have a conversation or comment about something STILL, without putting BUSH in the rebuttal. He wasn't perfect, no one is, not even the "Messiah", but he was as lot better than this piece of crap that we call a Commander in Chief...Commander in Thief is more accurate. If Bush had tried to do half the things that this guy is doing, you raging liberals would have lynched the poor man. One of these days you BO lovers will hopefully wake up and see what you've done....or maybe I'm giving you far too much credit.
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|USA follows the example of North Korea?
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|And that is why I store ALL personal data on a cloud drive, let them snoop all they want they never find anything on my laptop.
The truth is they are horny bas****s that wants nude pics of your girlfriend.
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|reminds me of airport security officials
w8 they are lol
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|I think the main problem (at least for me it would be) is that your computer can be seized even if the officer has no evidence that you have something illegal on it. For me that is a major issue, I don't want them to keep my computer while they investigate it, if I brought it with me it is because I need it and not in a week.
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|And if it's in the cloud, it can be looked through without your consent or knowledge. You have less legal protection if your data is not in your physical possession, which is ironic in this case.
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|My company already restricts us from carrying commercially sensitive information while visiting the US. We can VPN into our network once we are at our destination. I prefer to not carry my laptop at all, when visiting the US, and instead use one at our local office.
I suppose the DHS think they are doing the right thing, but really, anybody out to harm the United States is hardly going to keep their plans on a laptop and carry it through security when encrypted online storage is plentiful and cheap.
In fact the whole exercise is so futile that I have to ask myself if there isn't another reason why the authorities would want to do this.
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|I would say this is all part of the Obama Freedom Frontier Initiative to make sure All Americans have the same freedoms...none
PS: They will blame it on Bush!
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|Well, blaming Bush for the Department of Homeland Security is still legit
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|The policy as well as the Department of Homeland Security were both created under Bush -- how can Obama be held responsible for that?
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|Because he allows it to continue. Or did you forget that Obama has the power to disband DHS?
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|More like Department of Motherland Security.
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|I wonder if a Supreme Court case might ever pop up because of this
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|Well, as a Canadian, I have to hope we don't follow suit on this one. It's a ludicrous waste of resources, since anyone with an agenda will just remote to their cache of evil...what? I really have to wonder what would constitute a rational reason to perform such an invasive search. It would be interesting to know exactly what is being sought in such an investigation.
Ever since Obama came into being, as an outsider looking in, I have to suggest that the freedoms of individual US citizens has been declining. It isn't the existence of laws, so much as the continuous broadening of their scope that is worrisome. And since someone asked about what the rest of the world is thinking about stuff like this, we're not laughing at all. Some of my best friends are Americans, and I'm increasingly worried about how this nonsense is affecting their lifestyle choices. When did every American become automatically suspect of criminal behaviour?
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|You haven't been paying much attention. The policy under scrutiny here was created under the Bush regime, which also instituted the illegal warrantless wiretapping programming as early as February 2001 -- quite a stretch of time before 9/11 provided their justification for it. Along with that, the Bush regime enacted "free speech zones" that Obama doesn't use, the Bush regime required loyalty oaths that the Obama admin doesn't require...your concept of "diminishing freedoms" pales when compared to reality.
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|Why don't they go after illegal aliens instead of targeting U.S. citizens returning from another country? There were plenty in FloriDUH, Texas, and California.
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|Scott, you completely failed to address the critical Fourth Amendment issues.
And the issue of privileged information (on a lawyer's, doctor's, or priest's computer).
Finally, what do other countries have to say about this?
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|"Finally, what do other countries have to say about this?"
I can answer that one for you:
Hahahahahahahahahahahaha!
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|When it comes to the borders, the fourth amendment apparently doesn't apply. I'm not all that thrilled with that perspective -- it's a huge loophole that, particularly in this case, appears to be quite invasive -- but it's been the de facto law for a number of years now. :/
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|lol look, someone's gone rating down greyhawk's posts even though some of them aren't offensive at all
flamer alert
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|Part of the reason I voted for Obama was to end this was to end this unlawful conduct by "friggin Bush." I will not vote to re-elect if this stands!
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|gubmonte, have you not been paying attention? Like Bush or hate him, Obama has continued a significant number of Bush-era policies.
Are people still so naive about Obama? Isn't it time everyone came back down to reality? It's been 9 months since he was inaugurated.
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|He's not going to end it, he's out to EXTEND it. He's not pro citizen, he's PrObama & he's out to force his agenda down out throats until we spiral from world power to 3rd world country with him in the dictator's seat.
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|Shame on you for voting for Nobama. I can't believe you fell for him. He is clearly anti-individual and pro big-government, even moreso than moron Bush. His entire cabinet has studied in Soviet Russia.
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|You clearly talk right out your arse. Do you really think that Obama is suddenly going to reverse ALL of the stuff that Bush has done? Obviously not.
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|Some people it seems still don't understand how government is run. Sometimes one doesn't have a choice but to continue with a policy. It takes resources and time to change somethings. He has other more important priorities at the moment, like making sure your country doesn't go down the toilet any further because of Bush. The Bush administration left your country in great danger of failure. Some just don't want to see this, they just want to hate and blame and don't care who.
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|Wow -- that's not based on any sort of facts or evidence at all.
...where were you during the Bush regime, when all the damage to our nation and undermining of the Constitution were occurring...?
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|The sheer number of problems and issues that the Bush regime created, particularly toward the end of the their run, was partly designed to keep any new President from being able to address 'em all. Obama's been making some interesting headway in spite of the hypocritical calls for "bipartisanship" from the GOP who has also been filibustering every single initiative that Obama and the rest of Congress have tried to pass to deal with cleaning up the mess. I'm not thrilled with the order of and the approach to issues addressed -- I've got my own preferences -- but I'm not the one in the office who's got the massive pile of poop to clean up, so ... for 9 months in and with a major party dead-set against preventing him from getting anything done, Obama's actually done pretty well. I'm pleasantly surprised, and wish that the GOP had real patriotic leaders who'd actually work to help clean up the mistakes and mess of the previous Administration instead of the political hacks who are now intentionally gumming up the works and operations of government. (Don't they know that can qualify them as traitors and seditious bas****s -- as well as potential terrorists for the fear-mongering and incitement -- under Bush's Patriot Act fiasco?)
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|And another SJC clone surfaces from the sewer to spew his flamebait. Please, you are beyond old news.
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|LOL, wow, this might qualify as pathetic troll attempt of the year. Ok, maybe the month.
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|given the inner workings of the government that I have seen, greyhawk is probably right, you idiots
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|w8, are Conneally and Fulton the only active journalists here?
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|Depends if you count Carmi Levi.
Angela left.
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|I'm guessing that's a bad thing
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|Department of Homeland Security needs to die already
friggin Bush
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|Because no-one wants to enter the US with intentions of causing harm anymore?
I must have missed that press-release.
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|we got enough bureaucracies running around to protect the US
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|This is ludicrous. What happens if I have to travel abroad with my company laptop, which, in accordance with the company's IT policy, uses multiple levels of encryption to prevent data theft? Could an immigration official use this policy to seize and share the data on the machine, even if he frankly has no rights to the data? How can we protect our own information from being unjustly seized without leaving the laptops at home?
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|The solution seems simple and is already in place at many organizations: Bare-metal laptop with VPN/remote connectivity to your workstation/domain/groupware.
This can be extremely secure depending on the type of encryption/access measures.
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|Which is why the entire thing is retarded. Any information someone actually needed to keep out of DHS' big grubby hands could just be posted as a heavily encrypted archive in some obscure corner of the internet. Cross the border without any electronic equipment, pick up a cheap netbook first thing after entry into the country and download the sensitive data. Heck, you might even want to put it on a high traffic system like rapidshare to reduce the chances of it being caught by any traffic or content monitoring that might be going on.
Or you could just smuggle a flash drive like they do with drugs...
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|Which of course means that only law-abiding citizens (and really dumb criminals/terrorists) will be affected by this security theater; criminals and terrorists will just keep their incriminating data hidden on the Internet...
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|the only real hope we have of this law being changed, is if they seize the wrong machine (someones corp machine), and a large corporation (with more resources than any private citizen) goes on the warpath to protect its information.
i don't think my employer would be thrilled at all if i was traveling, and my laptop was seized, or the hdd copied.
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|i would be interested to get some kind of national poll on this issue,
i have a strange feeling that most of the US Citizens would probably welcome this policy,
in general most people worry that there governments not doing enough to tighten there borders from terrorists,
now i know and you know that this won't help much, but as a whole, the people will feel safer, and will feel there is some control in there country,
control as we all know is an illusion, yet we all feel that we need it, and without it, chaos would consume,
this policy helps people feel that terrorists will now have a hard time thinking about blowing up buildings, and bringing down planes,
and hell, if it manages to catch pedophiles who have porn pictures of young children on there laptop. all good,
just remember to use high grade encryption. and a very long password or (USB keys) are pretty good.
one quick thing, a lot of people do not encrypt there data, because it's a bit like backing up ones own data, we sometimes can't be arsed, terrorists do the same aswell,
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|Yes we all want to trade our liberty for security. If that's the case I am ashamed of my fellow Americans. We can all submit like good little serfs and then we can all feel safe from the big bad terrorists. I have news for you sheeple. The biggest terrorist threat is the U.S. government. DHS is for Americans, not terrorists. Americans are the terrorists. Believe in the Constitution? Terrorist. Don't like illegal immigration? Terrorist. Returning Veteran? DHS labels all of you terrorists. This is about making you submit and get used to being a slave. The U.S. government carried out the 911 attacks as evidenced by the controlled demolition of the towers and building 7 using nano-thermate, a military grade explosive. Oh, you didn't know 911 was an inside job? Google Steven Jones peer-reviewed scientific journal on 911. The government is run by criminals. Time to take it back.
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|I can't help but wonder who down-voted this..the idiots on the far left, the idiots on the far right, or the libertarians who hate everybody.
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|I appreciate your stance on the DHS, and there's really no doubt remaining that Homeland Security is another part of the mechanism for some kind of.."endgame", shall we say. But you do yourself a disservice by regurgitating the utterly discredited "9-11 was an inside job" nonsense. Its been completely debunked by everyone, at every level. Only the black helicopter tinfoil hat crowd are still beating that tattered drum. The "peers" who reviewed the Jones evidence were all part of that uber-paranoid minority. Sigh..if only Chris Carter hadn't created that ridiculous Lone Gunman episode..
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