WaPo : Citizens' U.S. Border Crossings Tracked

Citizens' U.S. Border Crossings Tracked

Data From Checkpoints To Be Kept for 15 Years

By Ellen Nakashima | Washington Post Staff Writer | August 20, 2008

The federal government has been using its system of border checkpoints to greatly expand a database on travelers entering the country by collecting information on all U.S. citizens crossing by land, compiling data that will be stored for 15 years and may be used in criminal and intelligence investigations.

Officials say the Border Crossing Information system, disclosed last month by the Department of Homeland Security in a Federal Register notice, is part of a broader effort to guard against terrorist threats. It also reflects the growing number of government systems containing personal information on Americans that can be shared for a broad range of law enforcement and intelligence purposes, some of which are exempt from some Privacy Act protections.

While international air passenger data has long been captured this way, Customs and Border Protection agents only this year began to log the arrivals of all U.S. citizens across land borders, through which about three-quarters of border entries occur.

The volume of people entering the country by land prevented compiling such a database until recently. But the advent of machine-readable identification documents, which the government mandates eventually for everyone crossing the border, has made gathering the information more feasible. By June, all travelers crossing land borders will need to present a machine-readable document, such as a passport or a driver's license with a radio frequency identification chip.

In January, border agents began manually entering into the database the personal information of travelers who did not have such documents.

The disclosure of the database is among a series of notices, officials say, to make DHS's data gathering more transparent. Critics say the moves exemplify efforts by the Bush administration in its final months to cement an unprecedented expansion of data gathering for national security and intelligence purposes.

The data could be used beyond determining whether a person may enter the United States. For instance, information may be shared with foreign agencies when relevant to their hiring or contracting decisions.

Public comments are being taken until Monday, when the "new system of records will be effective," the notice states.

"People expect to be checked when they enter the country and for the government to determine if they're admissible or not," said Greg Nojeim, senior counsel at the Center for Democracy & Technology. "What they don't expect is for the government to keep a record for 15 years of their comings into the country."

But DHS spokesman Russ Knocke said the retention period is justified.

"History has shown, whether you are talking about criminal or terrorist activity, that plotting, planning or even relationships among conspirators can go on for years," he said. "Basic travel records can, quite literally, help frontline officers to connect the dots."

The government states in its notice that the system was authorized by post-Sept. 11 laws, including the Enhanced Border Security and Visa Reform Act of 2002, the Aviation and Transportation Security Act of 2001, and the Intelligence Reform and Terrorism Prevention Act of 2004.

Nojeim said that though the statutes authorize the government to issue travel documents and check immigration status, he does not believe they explicitly authorize creation of the database.

"This database is, in a sense, worse than a watch list," he said. "At least in the watch-list scenario, there's some reason why the name got on the list. Here, the only thing a person does to come to the attention of DHS is to lawfully cross the border. The theory of this data collection is: Track everyone -- just in case."

Under the system, officials record name, birth date, gender, date and time of crossing, and a photo, where available, for U.S. travelers returning to the country by land, sea or air. The same information is gathered about foreign travelers, but it is held for 75 years.

DHS and other agencies are amassing more and more data that they subject to sophisticated analysis. A customs document issued last month stated that the agency does not perform data mining on border crossings to glean relationships and patterns that could signify a terrorist or law enforcement threat. But the Federal Register notice states that information may be shared with federal, state and local governments to test "new technology and systems designed to enhance border security or identify other violations of law." And the Homeland Security Act establishing the department calls for the development of data-mining tools to further the department's objectives.

That raises concerns, privacy advocates say, that analyses can be undertaken that could implicate innocent people if appropriate safeguards are not used.

The border information system will link to a new database, the Non-Federal Entity Data System, which is being set up to hold personal information about all drivers in a state's database. States that do not agree to allow customs to have such large amounts of information may allow the agency to query their databases in real time for information on a traveler.

Because of privacy concerns, Washington state earlier this year opted for the queries-only approach. The Canadian government made the same decision. "There was absolutely no way they should have the entire database," said Ann Cavoukian, Ontario's privacy commissioner, who learned about the Canadian government's decision in April.

"Once you have data in a database you don't need, it lends itself to unauthorized use," she said. "You have no idea of the data creep."

Vermont opted to allow access to its driver's licenses because the state could not guarantee the "nanoseconds" response time DHS required, said Bonnie L. Rutledge, the state's commissioner of motor vehicles. She said drivers are informed up front of the data sharing.

"A person opts to go over the border, their information is going to be collected and held anyway," she said. "If you don't want to go over the border, you don't have to."

The notice states that the government may share border records with federal, state, local, tribal or foreign government agencies in cases where customs believes the information would assist enforcement of civil or criminal laws or regulations, or if the information is relevant to a hiring decision.

They may be shared with a court or attorney in civil litigation, which could include divorce cases; with federal contractors or consultants "to accomplish an agency function related to this system of records"; with federal and foreign intelligence or counterterrorism agencies if there is a threat to national or international security or to assist in anti-terrorism efforts; or with the news media and the public "when there exists a legitimate public interest in the disclosure of the information."

Homeland Security is proposing to exempt the database from some provisions of the 1974 Privacy Act, including the right of a citizen to know whether a law enforcement or intelligence agency has requested his or her records and the right to sue for access and correction in those disclosures.

A traveler may, however, request access to records based on documents he or she presented at the border.

The notice is posted at the Government Printing Office's Web site.

WaPo : US Border Agency Says It Can Seize Laptops

US Border Agency Says It Can Seize Laptops

U.S. agents now have the authority to seize and retain laptops indefinitely, according to a new policy detailed in documents...

Agam Shah, IDG News Service | PC World | August 2, 2008

Travelers beware: U.S. agents now have the authority to seize and retain laptops indefinitely, according to a new policy detailed in documents issued by the U.S. Department of Homeland Security.

As part of border search policy, government agents are now authorized to seize electronic devices and inspect documents in them, the document states. The electronic devices might include laptops, cell phones, portable music players or storage devices such as portable hard drives.

Agents with U.S. Customs and Border Protection will also be allowed to translate and share documents with other government agencies.

The DHS document, issued July 16, appears to state publicly a policy that has already existed. Laptops and electronic devices have been subject to search in the past, and travelers have reported not getting their devices back. The policy has drawn strong criticism from lawmakers and nonprofit groups, who charged that the searches were invasive and a violation of an individual's privacy rights. Computers contain a vast amount of private information about family, finances and health, which could be easily copied and stored in government databases, the Electronic Frontier Foundation has complained.

The policy document states that being able to examine documents and electronic devices is crucial for "detecting information concerning terrorism, narcotics smuggling ... contraband including child pornography, and ... other import or export control laws."

The new DHS policies allow customs agents to analyze the contents of laptops without any suspicion of wrongdoing, U.S. Senator Russ Feingold said in a statement.

"The policies that have been disclosed are truly alarming," Feingold wrote.

The policy could blur the distinction between "search" and "seizure," which could also allow DHS officials to steal personal documents from laptops it has retained, Feingold wrote.

WaPo : Travelers' Laptops May Be Detained At Border

Travelers' Laptops May Be Detained At Border

No Suspicion Required Under DHS Policies

By Ellen Nakashima | Washington Post Staff Writer | August 1, 2008

Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

"The policies . . . are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

Civil liberties and business travel groups have pressed the government to disclose its procedures as an increasing number of international travelers have reported that their laptops, cellphones and other digital devices had been taken -- for months, in at least one case -- and their contents examined.

The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and analyze information." This may take place "absent individualized suspicion."

The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "

Reasonable measures must be taken to protect business information and attorney-client privileged material, the policies say, but there is no specific mention of the handling of personal data such as medical and financial records.

When a review is completed and no probable cause exists to keep the information, any copies of the data must be destroyed. Copies sent to non-federal entities must be returned to DHS. But the documents specify that there is no limitation on authorities keeping written notes or reports about the materials.

"They're saying they can rifle through all the information in a traveler's laptop without having a smidgen of evidence that the traveler is breaking the law," said Greg Nojeim, senior counsel at the Center for Democracy and Technology. Notably, he said, the policies "don't establish any criteria for whose computer can be searched."

Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not infringe on Americans' privacy." In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.

Homeland Security Secretary Michael Chertoff wrote in an opinion piece published last month in USA Today that "the most dangerous contraband is often contained in laptop computers or other electronic devices." Searches have uncovered "violent jihadist materials" as well as images of child pornography, he wrote.

With about 400 million travelers entering the country each year, "as a practical matter, travelers only go to secondary [for a more thorough examination] when there is some level of suspicion," Chertoff wrote. "Yet legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."

In April, the U.S. Court of Appeals for the 9th Circuit in San Francisco upheld the government's power to conduct searches of an international traveler's laptop without suspicion of wrongdoing. The Customs policy can be viewed [here, pdf].

Telegraph : US officials given power to seize British visitors' laptops

US officials given power to seize British visitors' laptops

Visitors to the United States face having their laptop computers and other digital devices seized after federal agents were given new powers to protect America's borders.

By Alex Spillius in Washington | August 1, 2008

In a move that could affect thousands of British business travellers and tourists each year, the Department of Homeland Security will be allowed to carry out seizures without suspicion of wrongdoing and can hold devices for a "reasonable period of time".

Customs and border staff have been empowered to share the contents of seized computers with other government and private agencies for data decryption and translation.

The policies cover hard drives, flash drives, mobile phones, iPods, pagers, and video and audio tapes - as well as books, pamphlets and other written materials.

US government officials told the Washington Post that the policies applied to any of the 400 million people entering the country in a year, including US citizens, and were needed to prevent terrorism. About four million British people travel to America each year.

The measures are already in place but were only disclosed under pressure from civil liberties and business groups, who were acting on reports that increasing numbers of overseas visitors had been stopped and had their electronic equipment confiscated and analysed.

The policies require federal agents to take measures to protect business data and privileged legal material. They stipulate that any copies of the data must be destroyed when a review is completed and no probable cause exists to keep the information.

The Democrat Senator, Russ Feingold, described the new measures as "truly alarming". He intends to introduce legislation to require reasonable ground for suspicion before equipment is confiscated.

From the beginning of next year British people entering the US without a visa will have to register with the American government online up to 72 hours before they leave.

Under the existing visa waiver programme, which applies to 27 countries including Britain, travellers must fill in an immigration form while they are on their way.

But a new advance screening system which was launched - initially as a voluntary programme - will become obligatory from January.

Under a deal struck between Brussels and Washington, US officials can also potentially look at travellers' credit card and email accounts.

Information released under the Freedom of Information Act earlier this year disclosed how the Department of Homeland Security can ask for "additional information'' on top of the "Passenger Name Record" (PNR) data which airlines must already provide to be allowed to fly to the country.

Officials can now demand the right to inspect other transactions on the credit card used to book a flight, for example, or view emails on the account given to the airline.

But British and US officials are also working on a scheme to speed up the process for frequent flyers between the two countries.

Shami Chakrabarti, director of the human rights group Liberty, said: “It is one thing to look for drugs and explosives, another to conduct data trawls without suspicion.

“If the authorities don’t behave with reasonable proportion, airline travel will seem more punishment than pleasure.”