In response to the green light given by the 9th Circuit Court of Appeals, Customs and Border Protection just released its new policies for searching and seizing laptops at the border. While the new policies require that CBP destroy copies of content seized if nothing illegal is found, according to Peter Swire's post this morning on Think Progress, "That is far from comforting, even once you get your laptop back days or weeks later, because 'nothing in this policy limits the authority of an officer to make written notes' about what was in the laptop."
Swire also points out that the way the policy is written, "Officers may detain documents and electronic devices," including iPods, cellphones, pagers, and other electronic storage devices. And if you happen to have ANY unlicensed songs on your iPod, phone, or computer, watch out. You have something illegal on your device. Now CBP can retain all the content they copied from your devices.
The bottom line is that the policy is still wanting for the meaningful privacy safeguards needed and called for in the "Hands Off My Laptop" campaign I mentioned in my earlier post on this issue. The range of devices lumped into this policy, coupled with the continued practice of searches "absent probable cause," makes me very uncomfortable (I wonder how the prospect of large numbers of iPods confiscated at the border will affect Apple's sales and stock prices).
Despite the posting of the policy, conducting and publishing a Privacy impact Assessment is still needed. There are still too many questions unanswered by CBP's policy. It still leaves room for racial profiling. It still allows CBP to keep written notes about the contents on devices that contain no illegal content. It still provides no clear sense of how long CBP can keep the devices or the content. And it still leaves open the ability of other agencies sharing the information with CBP to keep notes taken about the contents of the devices.
Senator Russ Feingold (D-WI) plans to introduce legislation to codify protections against many of these concerns into law. Clearly, if CBP isn't going to address them, Congress has to.
As for our seizing our first born, if the day comes when babies have chips implanted in them, perhaps to provide digital identification or records of vaccinations (or other data), I am sure Customs will weigh its options to confiscate them at the border, too. Call me cynical, but given the open questions of the current policy it doesn't seem too far fetched.