WASHINGTON - May 6 - 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.