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The Asian Law Caucus (ALC) receives over twenty complaints from Northern California residents reporting excessive and repeated screenings by US Customs and Border Protection agents upon their entering the country. The residents say they have been interrogated about their families, religious practices, volunteer activities, political beliefs, and political associations when they returned from traveling abroad, regardless of their First Amendment rights. The residents say their books, business cards, handwritten notes, personal photos, laptop computer files, and cell phone directories were examined and sometimes copied. When they complained, some of them were told, according to the ALC, “This is the border, and you have no rights.” (Electronic Frontier Foundation 2/7/2008; Electronic Frontier Foundation 2/7/2008)
Interrogation at the Border - Nabila Mango, a US citizen from San Francisco, returns from a trip to Jordan in December 2007. She will say she is told by customs officials at San Francisco International Airport to list every person she met and every place she slept. Her Arabic music books, business cards, and cell phone are examined, and she believes some of her documents are copied. (Electronic Frontier Foundation 2/7/2008) Her daughter tries repeatedly to call her on her cell phone during the interrogation, but Mango finds that customs officials erased the records of her calls. (Nakashima 2/7/2008) “In my 40 years in this country, I have never felt as vulnerable as I did during that interrogation,” Mango will say. “I want to find out whether my government is keeping files on me and other Americans based on our associations and ideas.” A California citizen, Amir Khan, will also say he is stopped and interrogated every time he returns to the country. He has his laptop, cell phone, and personal notebooks searched. He is never told why he is being singled out. “One customs officer even told me that no matter what I do, nothing would improve,” he will say. “Why do I have to part with my civil liberties each time I return home?” (Electronic Frontier Foundation 2/7/2008) Software engineer Kamran Habib, a permanent US resident, has his laptop and cell phone searched three times in 2007. Now, Habib says, “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.”
Search and Seizure - Maria Udy, a marketing executive in Bethesda, Maryland, will say her company laptop is seized by a federal agent as she attempts to fly from Washington’s Dulles International Airport to London. Udy, a British citizen, is told by the agent that he has “a security concern” with her. “I was basically given the option of handing over my laptop or not getting on that flight,” she will recall. Udy is told that it is standard procedure to keep the computer for 10 to 15 days; over a year later, her laptop will not have been returned, and she will not be given any explanation. A tech engineer who wishes to remain anonymous will say he has a similar experience in the same airport months earlier. The engineer, a US citizen, says a federal agent requires him to open up his laptop and type in his password. “This laptop doesn’t belong to me,” he protests. “It belongs to my company.” He has little choice; he logs on, and the agent copies down every Web site he had visited on the laptop. The Association of Corporate Travel Executives (ACTE)‘s Susan Gurley will say her organization has filed its own FOIA request to find out what happened to seized laptops and other electronic devices. “Is it destroyed right then and there if the person is in fact just a regular business traveler?” she asks. “People are quite concerned. They don’t want proprietary business information floating, not knowing where it has landed or where it is going. It increases the anxiety level.” The ALC’s Shiran Sinnar says that by examining the websites people visit and the phone numbers they store, “the government is going well beyond its traditional role of looking for contraband and really is looking into the content of people’s thoughts and ideas and their lawful political activities.” Legal experts say that if conducted inside the country, such searches would require a warrant and probable cause. The government insists that a laptop is legally the same as a suitcase, and can be opened and examined essentially at will. Law professor David Cole disagrees: “It’s one thing to say it’s reasonable for government agents to open your luggage. It’s another thing to say it’s reasonable for them to read your mind and everything you have thought over the last year. What a laptop records is as personal as a diary but much more extensive. It records every website you have searched. Every email you have sent. It’s as if you’re crossing the border with your home in your suitcase.” (Nakashima 2/7/2008)
Two civil liberties organizations, the Electronic Frontier Foundation (EFF) and the Asian Law Caucus (ALC), file a joint lawsuit against the US Department of Homeland Security. The two organizations file under the Freedom of Information Act (FOIA), and demand that DHS make available its records on the questioning and searches of lawful travelers through US borders. The suit follows a large number of complaints by US citizens, immigrants, and visitors who have spoken out about what they term excessive and repeated screenings by US Customs and Border Protection agents (see 2007). ALC’s Shirin Sinnar says, “When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation’s doorstep. The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process.” EFF’s Marcia Hofmann agrees, saying, “The public has the right to know what the government’s standards are for border searches. Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America’s travelers.” (Electronic Frontier Foundation 2/7/2008; Electronic Frontier Foundation 2/7/2008) The lawsuit demands the public release of DHS’s policies on border searches and interrogations. It also demands an explanation as to how far government agents can go in questioning and searching citizens who are not suspected of any crime. The question of whether federal agents have the right to search electronic devices at all without suspicion of a crime is already under review in the federal courts.
Racial or Religious Profiling? - Almost all of the complaints come from travelers of Muslim, Middle Eastern, or South Asian descent. Many of the complainants believe they were targeted because of racial or religious profiling. US Customs and Border Protection spokeswoman Lynn Hollinger denies the charge. It is not her agency’s “intent to subject travelers to unwarranted scrutiny,” she says, and adds that a laptop may be seized if it contains information possibly tied to terrorism, narcotics smuggling, child pornography or other criminal activity. However, a Customs officers training guide says that “it is permissible and indeed advisable to consider an individual’s connections to countries that are associated with significant terrorist activity.” Law professor David Cole asks, “What’s the difference between that and targeting people because they are Arab or Muslim?” (Nakashima 2/7/2008)
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