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Bill seeks guidelines for US laptop searches

Some rules for border agents, please

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US border agents can still snatch and search your laptop, mobile phone, or hard drive without reasonable suspicion of wrongdoing. But a bill introduced in Congress last week may enforce some guidelines on how the inspection is done.

The bill, titled the Border Security Search Accountability Act of 2008, would establish rules on how data seized from electronic devices can be stored, copied, and shared with other law enforcement organizations.

"This legislation will ensure that when an individual's property is seized at a U.S. point of entry, there is a well-defined procedure in place that will protect their electronic data — especially information that does not pose a threat to our homeland security," said Sanchez in a statement.

It should be noted the bill makes no attempt to limit when search and seizure of electronic devices passing through US borders are permissible. That albatross has been supported again and again by the US judicial branch.

Last April, the Ninth Circuit Court of Appeals reinforced that digital equipment passing into the US is legally analogous to suitcases and bags — therefore subject to random searches. US courts have long held that border and customs agents operate outside the Fourth Amendment's requirement of probable cause and a warrant before invasive search and seizure of persons, houses, papers, and effects are allowed.

The bill requests that DHS agents "to the greatest extent practicable," conduct their searches in the presence of a supervisor and, when appropriate, the owner of the device being searched.

It also requires data determined to be commercial information trade secrets, or privileged information won't be shared with federal, state, local, or foreign authorities unless its determined the receiving agency can comply with laws and regulations protecting such information.

If seized data is copied or distributed, the owner of the device will get written notification unless it's determined to be a matter of national security. The owner also gets a receipt of their seized goods and notice on how to report abuses or concerns about the DHS's actions.

The bill also seeks for agents to receive training on constitutional, privacy, and civil rights related to border searches.

"I was deeply concerned to learn about the lack of protections individuals' have when their electronic equipment is randomly seized," stated Sanchez. "With the passage of the Border Search and Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are more stringent accountability measures in place for safeguarding their personal information."

That sounds like a bit of a stretch for being guaranteed a receipt and support pamphlet after your laptop is confiscated for an indeterminate amount of time. But it's probably better than no notice at all — and no restrictions on how the data can be shared.

It's unlikely, however, the bill will be passed before Congress ends its second session in January. So definitely keep your fingers crossed or laptop clear of sensitive information if crossing the US border in the near future. ®

Internet Security Threat Report 2014

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