'New' travel search rules just won't fly

The Obama administration clarified its rules about border searches of laptops and other digital gear. Bottom line: If you care about your data, leave the laptop at home

The chorus of folks singing "meet the new boss, same as the old boss" just got a little bigger and louder, after the Obama Administration issued "new" rules for border laptop searches that bear an uncanny resemblance to the old rules.

To recap: Last August, the lame-duck Bush Administration codified a longstanding policy that allowed Department of Homeland Security officials to seize travelers' laptops and other digital gear at the border -- with no questions asked and no guarantee of return. Earlier this week the ACLU filed a Freedom of Information lawsuit demanding, among other things, to know whose laptops were seized and what happened to them.

Perhaps coincidentally, a day later DHS Secretary Janet Napolitano issued "new directives" regarding electronic border searches. The new rules are not a total stiff -- they put limits on the kinds of information DHS cops can look at, how long the DHS can hold onto your gear, and more oversight over the process. But many who'd hoped for a significant change in the way civil liberties have been abused by our Uncle over the last eight years are probably outside right now scratching the "Yes We Can" stickers off their bumpers.

Even the ACLU says border searches are necessary to ensure our safety. But like me, the group has more than a few problems with the how, the why, and the what.

What's wrong with this picture? Well, let's start with the lack of probable cause. The Obamanistas have left unchanged a Bush policy that allowed DHS agents to search any device of any traveler at any time -- no reason necessary. Look the wrong way at an airport security agent who's having a bad hair day, and say adios to your laptop, cell phone, iPod, digital camera, or virtually any other device more complicated than a hair dryer for up to 30 days.

Problem No. 2: What exactly are they looking for? One of the biggest problems with laws designed to "enhance national security" is that they're often used to circumvent restrictions on law enforcement abuse (like, say, the Fourth Amendment) in cases that have nothing to do with terrorism. Just ask the guy who got arrested earlier this week for trying to smuggle child pornography over the Canadian border. He's one of an unknown number of pervs caught in similar circumstances, either by U.S. or foreign customs officials.

No one here is defending the right to carry kiddie porn, but what exactly does that have to do with national security? And if the feds are going to perform a digital cavity search for porn, why not pirated movies and music? Where is the line drawn and who draws it?

As the Associated Press reports:

The searches, which predate the Sept. 11, 2001, terrorist attacks, have uncovered everything from martyrdom videos and other violent jihadist materials to child pornography and stolen intellectual property, according to the government.

Then there's all the stuff they find that's not even illegal, just embarrassing, confidential, potentially damaging to a company (like trade secrets or deals in progress), or simply personal. The new rules call for this information to be "destroyed" within 7 days and require inspectors to consult an agency attorney before viewing certain information (like medical records). Why do I not find this comforting?

Having just traveled over an international border with a laptop that is a) full of recent work that can't be easily duplicated, and b) not actually mine (it's a review unit), I can attest that having to surrender that machine for up to 30 days and get it returned to me wiped clean -- after having done nothing wrong or even suspicious -- would tick me off rather a lot.

Despite all of the above, I do not agree with those who will leap upon this as evidence the Obama administration is the second coming of Stalin. Remember, this stuff has been going on long before the O-man took office. The problem is that many us hoped for something better, not just more of the same.

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Robert X. Cringely

InfoWorld
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