Border officials can seek, keep data

Send us your tired, your poor, your huddled masses . and your data? Under a policy that has reportedly long been in place but only disclosed in July, United States federal agents have the power to seize traveler's electronic devices and hold them for an unspecified period of time, according to an Aug. 1 Washington Post story. Such seizures, under the recently disclosed Department of Homeland Security policies, can occur without suspicion of wrongdoing. DHS officials say the policies apply to everyone entering the States, including U.S. citizens, and are needed to fight terrorism. However, the new rules have upset some. Globe and Mail newspaper columnist Jack Kapica let his Panel of Learned Geeks sound off in an Aug. 7 column. The part of the policies allowing agents to make copies of the data to examine and share with other U.S. government agencies concerned many panel members.

"Until someone comes up with definitions of what 'a person possessing data' or a device 'holding data' actually means, this is going to be a freakin' mess," one panel member said. "Common law concepts that apply to possession of physical objects just do not apply whatsoever to data. Data is a representation, not a physical object itself."

Another panel member wondered if he would be forced to divulge his business' passwords, as he does not keep data on his laptop but works off his company's network. If so, he feared giving up this info would put him in breach of his employment contract and nondisclosure agreement.

The DHS measures were disclosed after civil liberty and business travel groups received reports of an increasing number of international travelers having their laptops and other devices examined. The rules apply to hard drives, flash drives, cell phones, iPods, other MP3 players, pagers and beepers. It also includes video and audio tapes, books, pamphlets and other written material.

Under the policies, federal agents are required to protect business information and attorney-client privileged material. Data is to be destroyed when the review is completed and no probable cause exists to keep it.

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