Laptop seizures at customs cause thorny legal dispute
David House took his laptop to Mexico a little over a year ago, hoping to squeeze in some work between sightseeing, fishing, and laying on the beach. All went well, vacation- and work-wise, until the former MIT researcher landed in Chicago, where federal agents seized his laptop, kept it for nearly two months, and may have shared information on his hard drive with several government agencies.
They didn’t have a search warrant. They didn’t charge him with a crime. And there was nothing House could do about it.
House, 24, ran into what civil liberties advocates call the “Constitution-free zone’’ at US ports of entry, where courts have carved out broad exceptions to the Fourth Amendment’s protection against unreasonable searches and seizures. As long as they don’t use invasive techniques such as strip searches, government agents don’t need reasonable suspicion or probable cause to seize what they want - including laptops, a 2008 appeals court ruling held.
House’s case forms the basis of one of two lawsuits the American Civil Liberties Union has filed to stop the search and seizure of laptops at US borders without reasonable suspicion of wrongdoing and calls attention to a vulnerability that many people are unaware of when they travel in and out of the United States with important files on laptops, smartphones, and tablets.
A survey last month by the Association of Corporate Travel Executives found that nearly half of the participating companies did not know customs agents could inspect, copy, or even seize travelers’ laptops.
Robert Plotkin is a Burlington patent lawyer who sometimes travels overseas with documents and data related to his clients’ proprietary technology stored on his laptop. He said he was alarmed when he learned recently that the government could confiscate his computer without cause when he returned home.
“I have a legal obligation to maintain the confidentiality of that data for my clients,’’ he said. “If I were to cooperate with [a search], then I think my clients would have a claim against me for breaching client confidentiality.’’
The ACLU argues that the search and seizure of laptops is much more invasive than looking in someone’s luggage, since laptops often contain personal, private, or sensitive information. Several bills that would require suspicion of illegal activity to search laptops have been considered by Congress in recent years, but they have never passed.
Balancing civil rights and national security is tricky, said US Representative William Keating, a Quincy Democrat and member of the House Committee on Homeland Security. But he said the government should not be able to randomly take people’s electronic devices.
“If they’re going to seize something, there should be a reason,’’ Keating said.
The Customs and Border Protection agency says the power to seize laptops is necessary to find information about terrorists, drug smugglers, and other criminals trying to enter the country. Of the more than 340 million people who traveled across the US border in 2011, about 5,000 had laptops, cellphones, iPods, or cameras searched.
“It’s our responsibility to protect the border, to protect the nation,’’ said spokeswoman Joanne Ferreira.
Customs officers, Ferreira added, must comply with the Trade Secrets Act, which prohibits federal employees from disclosing confidential business information. Still, some businesses worry that files could fall into the wrong hands and order employees to wipe laptops clean of sensitive information before traveling overseas.
To keep important data safe, some companies have employees upload files to remote computers, or the cloud, and retrieve them later through the Internet. Others download data onto a flash drive or similar device that can be mailed to a traveler’s final destination. Still others create hidden drives on which to store the information.
Some companies are scrambling to update travel policies. IC Intracom, a computer components maker in Florida with offices in China and Taiwan, only recently learned of the risk to its proprietary data from the Association of Corporate Travel Executives. The company plans to establish new policies, possibly requiring employees to store sensitive information on servers instead of on laptops. That would prevent traveling employees from working in places without Internet connections.
But, said Maria Steen, who books travel at IC Intracom, the loss or potential disclosure of data “could be devastating.’’
House, who worked at MIT until last summer, had his laptop seized when he changed planes in Chicago on his way to Boston because federal agents wanted to learn more about his connections to Bradley Manning, the US Army private who leaked classified government information to the website WikiLeaks. House met Manning at a hackers’ workshop at Boston University in early 2010 and helped to found a support network to raise money for him after he was imprisoned.
The government kept House’s computer for 49 days, during which government agents had access to contact information for donors and House’s bank account passwords and family photos, as well as coding he had done in Mexico.
“A computer is like reading someone’s mind,’’ said House, who lives in Brighton and works as a computer security consultant.
The suit, which House acknowledges won’t be easily won, is pending in US District Court in Boston. House isn’t seeking damages, but he wants the government to return or destroy any copies it made of data on his computer and disclose which agencies were given access to it. If House prevails, the government could no longer search travelers’ laptops without a reasonable suspicion of illegal activity, according to the ACLU.
“Given the role of computers in modern society and the extent of the information that people carry with them on electronic devices, we have asked the court to acknowledge that the search of a computer should be treated as an invasive and overly intrusive search,’’ said John Reinstein, an ACLU lawyer representing House. “Under existing rules, you shouldn’t take anything across the border that you don’t want to expose to another set of eyes.’’