Feingold Presses DHS Secretary About Laptop Seizure Policy

For Immediate Release

Senator Russ Feingold
Contact: 

Zach Lowe (202) 224-8657

Feingold Presses DHS Secretary About Laptop Seizure Policy

WASHINGTON - During a Senate Judiciary
Committee hearing today on Department of Homeland Security (DHS) oversight,
U.S. Senator Russ Feingold questioned DHS Secretary Janet Napolitano about the new administration's
policy on customs officials searching travelers' laptops.  Last
year, Feingold introduced the Travelers Privacy Protection Act in response to a
Department of Homeland Security policy allowing customs agents to seize laptops
for an unspecified period of time to "review and analyze" their
contents "absent individualized suspicion."  Feingold has held
off on reintroduction of the legislation in order to give the new
administration a chance to address the privacy issues raised by the
policy.  Video of Feingold's exchange with Napolitano is available
at http://www.youtube.com/watch?v=qtfvsyk_SUs
and a transcript of the exchange is below:

Senator
Feingold

In February of last year, the Washington Post reported that customs agents had
been searching the cell phones and laptops of U.S. citizens and international
business travelers coming across the border and then copying the
contents.  And I asked then-DHS Secretary Michael Chertoff about this
issue when he appeared before this committee a little over a year ago and a few
months later I held a separate hearing on this issue in the Constitution
subcommittee.  DHS's answers to my questions and its public
statements on its practices and policies in this area were often confusing and
even contradictory.  In September, I then introduced a bill, the
Travelers' Privacy Protection Act, to require that border agents actually
have a reasonable suspicion of wrong doing before they search laptops and other
electronic devices.  Madam Secretary, the current policy has caused a
great deal of consternation not only among members of certain minority groups
who believe they are singled out for heightened screening when they return from
trips overseas but actually a lot of comments of great concern from business
travelers in general.  In fact, the testimony at the hearing I held
indicated some companies feel compelled to give their employees who travel
overseas a special laptop that has been wiped clean of any confidential
information because they don't want government agents looking at and
potentially making copies of it when the business traveler returns. Do you
agree with me that the current DHS policy raises legitimate privacy concerns
and what steps have you taken to review and revise the policy?

DHS
Secretary Janet Napolitano
:  Yes, I think clarification is needed here and
we have put together a team within the Department of Homeland Security to issue
pretty firm guidance and protocol for how you conduct a laptop search. 
That being said, I would say, Senator, that in the course of the very few
laptop searches that actually have been done - and it has been a very
small number that actually have been conducted - they have found some
fairly significant criminal activity on some laptops.  But moving forward,
we are a global society, people going from country to country all the time,
they're crossing the border, they need to take their laptops to do
business, we need to have a better policy that takes into account some of those
IP concerns, some of the privacy concerns.  That's what we're
drafting now.

Feingold:  Madam Secretary, I don't
have any doubt that when you search laptops sort of indiscriminately,
you're going to find some good stuff. But that's not the way we do
business in this country, should not do business in this country.  So I
know you understand that but I have held off reintroducing my bill because I
wanted to give the new administration a chance to revisit this policy but I
can't just wait forever so I'm wondering how soon I can expect a
review to be completed and a revised policy to be put in place.

Napolitano:  We're working on it right
now, Senator.

Feingold:  And when do you think it will be
done?

Napolitano:  Senator, if I give you a timeframe
and don't meet it you will be unhappy with me but let me suggest within
the next 45 days.

Timeline
of Senator Russ Feingold's Actions to Fix the Department of Homeland
Security's Laptop Search Policies

February 7, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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, 2008 - 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.

May 6,
2009
- Senator
Feingold questions DHS Secretary Janet Napolitano on what the new
administration is doing to review and revise the DHS policy.

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