FEINGOLD, CANTWELL, SMITH OFFER BILLS PROTECTING TRAVELERS FROM SUSPICIONLESS LAPTOP SEARCHES September 29, 2008 Washington, D.C. – U.S. Senators Russ Feingold (D-WI) and Maria Cantwell (D-WA) and Representative Adam Smith (D-WA) introduced legislation today to ensure that American citizens and legal residents returning to the U.S. from overseas are not subject to invasive searches of their laptop computers or other electronic devices without any suspicion of wrongdoing. The Travelers Privacy Protection Act was introduced in response to a Department of Homeland Security policy, released on July 16th that allows customs agents to detain laptops for an unspecified period of time to “review and analyze” their contents “absent individualized suspicion.” The policy was released after reports emerged of U.S. customs agents requiring American citizens and legal residents to turn over their laptops or cell phones and wait for hours while the devices were searched. In some cases, the contents of the devices were copied, and in other cases, the devices were confiscated and returned weeks or even months later with no explanation. The bill is cosponsored in the Senate by Senators Daniel Akaka (D-HI) and Ron Wyden (D-OR). “Most Americans would be shocked to learn that upon their return to the U.S. from traveling abroad, the government could demand the password to their laptop, hold it for as long as it wants, pore over their documents, emails, and photographs, and examine which websites they visited – all without any suggestion of wrong-doing,” Feingold said. Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy. This bill will bring the government’s practices at the border back in line with the reasonable expectations of law-abiding Americans.” "We need to strike the right balance of keeping Americans safe while protecting their right to privacy. When it comes to homeland security, this Administration time and time again has exceeded the boundaries of current law behind closed doors, without public input, and without oversight. The search and seizure of computers, cell phones, digital cameras, and other electronic devices of returning U.S. travelers at airports, even where there is no reasonable suspicion of wrongdoing, is just the most recent example. This bill establishes reasonable rules of the road under which the government can protect our border, while not violating American's precious constitutional rights," Cantwell said. “The chief responsibility of the United States Government is to protect its citizens, and while doing so it is critical that we do not overshadow the obligation to protect the privacy and rights of Americans. This legislation will provide clear and commonsense legal avenues for the Department of Homeland Security to pursue those who commit crime and wish to do our country harm without infringing on the rights of American citizens. Importantly, it will provide travelers a level of privacy for their computers, digital cameras, cellular telephones and other electronic devices consistent with the Constitution and our nation’s values of liberty,” said Smith. The Travelers Privacy Protection Act requires Department of Homeland Security agents to have reasonable suspicion of illegal activity before searching the contents of laptops or other electronic devices carried by U.S. citizens or lawful residents, and it prohibits profiling travelers based on their race, ethnicity, religion, or national origin. The bill also specifies that after 24 hours, a search becomes a seizure, which requires probable cause and a warrant or court order. Information acquired during an electronic border search is protected through strict limitations on disclosure, with narrow exceptions for sharing information about possible criminal violations or foreign intelligence information. Finally, the bill contains provisions ensuring that DHS provides information on its border search policies and practices to Congress and the public. On June 25th, Senator Feingold chaired a hearing in the Senate Judiciary Subcommittee on the Constitution on the DHS border search practices. Following the hearing, DHS finally posted on its website its search guidelines for customs agents, after having resisted calls for public disclosure for nearly two years.   Timeline of Senator Russ Feingold’s Actions to Fix the Department of Homeland Security’s Laptop Search Policies February 7 – The Washington Post reports that U.S. Customs agents have been searching the cell phones and laptop computers of U.S. citizens and international business travelers coming across the border and copying the contents without any reasonable suspicion of wrongdoing. April 2 – During a Senate Judiciary Committee Hearing, Senator Feingold questions Department of Homeland Security (DHS) Secretary Michael Chertoff about the policy, including the standard for searches and seizures, information retention policies, and whether people are singled out for searches based solely on their nationality. After the hearing, Senator Feingold submits several written follow-up questions to Secretary Chertoff. June 25 – Senator Feingold chairs a hearing in the Senate Judiciary Committee’s Subcommittee on the Constitution entitled “Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel.” The Department of Homeland Security refuses to produce a witness for the hearing, instead submitting vague and uninformative written testimony. The Department of Homeland Security does not comply with Senator Feingold’s request to produce answers to the questions previously submitted to Secretary Chertoff before the hearing. July 16 – Following Senator Feingold’s hearing and editorials in major newspapers calling for the Department of Homeland Security to come clean about its policies, the Department of Homeland Security publicly posts a written policy providing guidance to customs officials conducting searches of the contents of travelers’ laptop computers. The policy contains the following problematic provisions: Customs officers may “review and analyze” information on any traveler’s laptop “absent individualized suspicion.” While probable cause is needed to “seize” a laptop, no suspicion is needed to “search” it. The written policy defines “search” to include “detaining” laptops for an unspecified period of time, taking them off-site, and sending them to other agencies and even private individuals in some cases – thus blurring the distinction between a “search” and a “seizure.” Without any suspicion, customs officers can take written notes on the contents of laptops, which can be retained indefinitely. No restrictions on customs agents’ disclosure of personal information learned through these searches are specified. August 6 – In an interview with Wired.com, DHS Secretary Chertoff erroneously claims that, under DHS’s published search policy, customs officers only search laptops when a passenger is sent to secondary screening based on some suspicion about that passenger. In fact, the published search policy does not mention secondary screening, and expressly authorizes searches without any individualized suspicion. August 7 – Senator Feingold issues a statement on Chertoff’s incorrect comments in the Wired.com interview, noting that “Secretary Chertoff’s description of the newly published DHS policy on laptop searches was not just misleading – it was flat-out wrong.” August 8 – In an opinion editorial for the Milwaukee Business Journal, Senator Feingold writes, “In the post-Sept. 11 world, it goes without question that the security of the American people is first and foremost. Customs agents have the right and responsibility to conduct even very intrusive searches of traveling Americans. But suspicion-less searches of the contents of laptops or similar electronic devices go too far. Congress needs to prohibit this violation of privacy and needless drain on America’s business sector.” August 13 – Senator Feingold writes to DHS Secretary Chertoff regarding his erroneous statements in the Wired.com interview, asking him to either correct the record or amend the policy to make it conform to his statements. September 10 – DHS responds with a letter full of internal contradictions. The letter states that, despite what the published policy says, laptop searches are only conducted during secondary inspection and referral to secondary inspection occurs “only when some level of suspicion exists.” The letter also admits that 260,000 travelers per year are referred to secondary inspection based on random selection – i.e., without any suspicion of wrongdoing – where they may be subject to searches of their laptops and other electronic equipment. September 25 – Senator Feingold introduces legislation to require reasonable suspicion when DHS searches laptops or similar electronic equipment at the border. The legislation also requires probable cause and a warrant to seize electronic equipment; prohibits selecting travelers for electronic searches based on their race, ethnicity, religion, or national origin; and contains restrictions on the disclosure of information contained in a traveler’s laptop.

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