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45–091 PDF 2008

S. HRG. 110–589 

LAPTOP SEARCHES AND OTHER VIOLATIONS OF 

PRIVACY FACED BY AMERICANS RETURNING 

FROM OVERSEAS TRAVEL 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 25, 2008 

Serial No. J–110–103 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ROBERT F. SCHIFF, Chief Counsel 

LAUREN B. PETRON, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 4 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement and attachments ............................................................. 114 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 142 

WITNESSES 

Carafano, James Jay, Assistant Director, Kathryn and Shelby Cullom Davis 

Institute for International Studies, and Senior Research Fellow, Douglas 

and Sarah Allison Center for Foreign Policy Studies, The Heritage Foundation, Washington, D.C. ......................................................................................... 15 

Cunningham, Larry, Assistant District Attorney, Bronx County; Assistant 

Professor of Legal Writing, St. John’s University School of Law, Queens, 

New York .............................................................................................................. 12 

Gurley, Susan K., Executive Director, Association of Corporate Travel Executives, Alexandria, Virginia .................................................................................. 10 

Khera, Farhana Y., President and Executive Director, Muslim Advocates, 

San Francisco, California .................................................................................... 13 

Sales, Nathan A., Assistant Professor of Law, George Mason University 

School of Law, Arlington, Virginia ..................................................................... 8 

Swire, Peter P., Professor, Moritz College of Law, The Ohio State University, 

and Senior Fellow, Center for American Progress, Washington, D.C. ............ 17 

Tien, Lee, Senior Staff Attorney, Electronic Frontier Foundation, San Francisco, California .................................................................................................... 6 

QUESTIONS AND ANSWERS 

Responses of Larry Cunningham to questions submitted by Senator 

Brownback ............................................................................................................ 36 

Responses of Farhana Khera to questions submitted by Senator Feingold ....... 40 

Responses of Lee Tien to questions submitted by Senator Feingold ................... 44 

SUBMISSIONS FOR THE RECORD 

Ahern, Jayson P., Deputy Commissioner, Customs and Border Protection, 

Department of Homeland Security, Washington, D.C., statement .................. 52 

Asian Law Caucus, Inc., Shirin Sinnar, Staff Attorney, San Francisco, California, statement and attachments .................................................................... 60 

Carafano, James Jay, Assistant Director, Kathryn and Shelby Cullom Davis 

Institute for International Studies, and Senior Research Fellow, Douglas 

and Sarah Allison Center for Foreign Policy Studies, The Heritage Foundation, Washington, D.C., statement ...................................................................... 81 

Cunningham, Larry, Assistant District Attorney, Bronx County; Assistant 

Professor of Legal Writing, St. John’s University School of Law, Queens, 

New York, statement ........................................................................................... 87 

Gurley, Susan K., Executive Director, Association of Corporate Travel Executives, Alexandria, Virginia, statement ............................................................... 124 

Khera, Farhana Y., President and Executive Director, Muslim Advocates, 

San Francisco, California, statement ................................................................. 131 

Muslim Bar Association of New York, Asim Rehman, Esq., President, New 

York, New York, letter ......................................................................................... 144 

Page

IV 

Organizations urging the Committee on the Judiciary to hold hearings on 

Department of Homeland Security practices: 

May 1, 2008, joint letter ................................................................................... 146 

June 20, 2008, joint letter ................................................................................ 149 

Sales, Nathan A., Assistant Professor of Law, George Mason University 

School of Law, Arlington, Virginia, statement .................................................. 153 

Swire, Peter P., Professor, Moritz College of Law, The Ohio State University, 

and Senior Fellow, Center for American Progress, Washington, D.C., statement ...................................................................................................................... 162 

Tien, Lee, Senior Staff Attorney, Electronic Frontier Foundation, San Francisco, California, statement ................................................................................. 174 

U.S. Immigration and Customs Enforcement, Julie L. Myers, Assistant Secretary, Washington, D.C., directive .................................................................... 187 

U.S. News and World Report, June 24, 2008, article ........................................... 197 

Washington Post, February 7, 2008, article .......................................................... 199 

(1) 

LAPTOP SEARCHES AND OTHER VIOLATIONS 

OF PRIVACY FACED BY AMERICANS RETURNING FROM OVERSEAS TRAVEL 

WEDNESDAY, JUNE 25, 2008 

U.S. SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 9:06 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Russell D. Feingold, 

Chairman of the Subcommittee, presiding. 

Present: Senators Feingold, Durbin, and Brownback. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. Welcome to this hearing of the Constitution 

Subcommittee entitled ‘‘Laptop Searches and Other Violations of 

Privacy Faced by Americans Returning from Overseas Travel.’’ We 

will be hearing this morning from a panel of experts who can help 

us explore the legal and practical implications of this important 

issue. 

Let me start by making a few opening remarks, then I will recognize the Ranking Member, Senator Brownback, for an opening 

statement, and then we will turn to our witnesses. 

If you asked most Americans whether the Government has the 

right to look through their luggage for contraband when they are 

returning from an overseas trip, they would probably tell you yes, 

the Government has that right. But if you asked them whether the 

Government has the right to open their laptops, read their documents and e-mails, look at their photographs, and examine the 

websites they have visited, all without any suspicion of wrongdoing, I think those same Americans would say that the Government has absolutely no right to do that. And if you asked them 

whether that actually happens, they would say, ‘‘Not in the United 

States of America.’’ 

But it is happening. Over the last two years, reports have surfaced that customs agents have been asking U.S. citizens to turn 

over their cell phones or give them the passwords to their laptops. 

Travelers have been given a choice between complying with the request or being kept out of their own country. They have been forced 

to wait for hours while customs agents reviewed and sometimes 

copied the contents of their electronic devices. In some cases, the 

2 

laptops or cell phones were confiscated and returned weeks or even 

months later, with no explanation. 

Now, the Government has an undeniable right and responsibility 

to protect the security of our borders. The Supreme Court has thus 

held that no warrant and no suspicion is necessary to conduct ‘‘routine searches’’ at the border. But there is a limit to this so-called 

‘‘border search exception.’’ The courts have unanimously held that 

invasive searches of the person, such as strip searches or x-rays, 

are ‘‘non-routine’’ and require reasonable suspicion. As the Supreme Court has stated, these searches implicate dignity and privacy interests that are not present in routine searches of objects. 

So the constitutional question we face today is this: When the 

Government looks through the contents of your laptop, is that just 

like looking through the contents of a suitcase, car trunk, or purse? 

Or does it raise dignity and privacy interests that are more akin 

to an invasive search of the person, such that some individualized 

suspicion should be required before the search is conducted? 

This administration has argued in court that a laptop can be 

searched without any suspicion because it is no different from any 

other ‘‘closed container.’’ I find that argument to be disingenuous, 

to say the least. The search of a suitcase, even one that contains 

a few letters or documents, is not the same as the search of a 

laptop containing files upon files of photographs, medical records, 

financial records, e-mails, letters, journals, and an electronic record 

of all websites visited. The invasion of privacy represented by a 

search of a laptop differs by an order of magnitude from that of a 

suitcase. 

Ultimately, though, the question is not how the courts decide to 

apply the Fourth Amendment in these uncharted waters. I guarantee you this: Neither the drafters of the Fourth Amendment nor 

the Supreme Court when it crafted the ‘‘border search exception’’ 

ever dreamed that tens of thousands of Americans would cross the 

border every day, carrying with them the equivalent of a full library of their most personal information. Ideally, Fourth Amendment jurisprudence would evolve to protect Americans’ privacy in 

this once unfathomable situation. But if the courts cannot offer 

that protection, then that responsibility falls to Congress. Customs 

agents must have the ability to conduct even highly intrusive 

searches when there is reason to suspect criminal or terrorist activity. But suspicionless searches of Americans’ laptops and similar 

devices go too far. Congress should not allow this gross violation 

of privacy. 

Aside from the privacy violation, there is reason for serious concern that these invasive searches are being targeted at Muslim 

Americans and Americans of Arab or South Asian descent. Many 

travelers from these backgrounds who have been subject to electronic searches have also been asked about their religious and political views. As we will hear today, travelers have been asked why 

they chose to convert to Islam, what they think about Jews, and 

their views of the candidates in the upcoming election. This questioning is deeply disturbing in its own right. It also strongly suggests that border searches are being based, at least in part, on impermissible factors. 

3 

The disproportionate targeting of this group of Americans does 

not mean that other Americans are exempt. The Association of Corporate Travel Executives has surveyed its members, and 7 percent 

of business travelers who responded to the survey had experienced 

seizures of their laptops or other electronic equipment. That is an 

incredible number when you consider how many Americans are required to undertake overseas business travel today and the amount 

of confidential business information stored on their laptops. As we 

will be hearing today, the problem is large enough to have a real 

impact on the way Americans do business. 

Americans have tried to find out from the Department of Homeland Security what its specific policies are on searching and seizing 

electronic equipment at the border. Two nonprofit organizations 

filed a Freedom of Information Act request in October 2007 to get 

DHS to turn over its policies. Eight months later, DHS has not 

complied with that request. My own questions for Secretary of 

Homeland Security Michael Chertoff on this issue, which I submitted to him in early April after his appearance at an oversight 

hearing held by the full Judiciary Committee, have not been answered, despite my specific request that they be answered before 

this hearing. 

I asked DHS to send a witness to testify today. DHS responded 

that its preferred witness was unavailable on the day of the hearing. So I asked DHS to send a different witness, but DHS declined. 

I felt it was so important to have a DHS witness here that I wrote 

a letter to Secretary Chertoff last week urging him to reconsider, 

and that letter will be made part of the hearing record. The Secretary has not responded. 

DHS did provide written testimony. That testimony—which, incidentally, was submitted over 30 hours later than the Committee 

rules require—provides little meaningful detail on the agency’s 

policies and raises more questions than it answers—questions that 

no one from DHS is here to address. 

Needless to say, I am extremely disappointed that the Department of Homeland Security would not make a witness available to 

answer questions today. Once again, this administration has demonstrated its perverse belief that it is entitled to keep anything and 

everything secret from the public it serves and their elected representatives, while Americans are not allowed to keep any secrets 

from their Government. That is exactly backward. In a country 

founded on principles of liberty and democracy, the personal information of law-abiding Americans is none of the Government’s business, but the policies of the Government are very much the business of Congress and the American people. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

In any event, I look forward to hearing from the witnesses who 

did accept my invitation to testify today so we can begin to explore 

this important issue in more detail. But first let me recognize the 

Ranking Member, Senator Brownback, for any comments he would 

like to make. 

4 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you, Mr. Chairman. Let me pass on 

my condolences to you and the State of Wisconsin for the flooding 

that had happened up there. We are going to dealing with it 

throughout the Midwest. We have had a lot of storms in our part 

of the country. We have not had quite the level of flooding that you 

have had, and I know that is something that is concerning all of 

us and concerning people— 

Chairman FEINGOLD. It is rough, yes. 

Senator BROWNBACK. Yes, just amazing numbers of things we 

are going to need to deal with. That is aside from this hearing. 

I want to thank the panelists for all being here, and I want to 

thank you for holding this hearing. I find it a very interesting topic 

and one I think that is certainly worthy of this Subcommittee to 

be exploring and to be looking at. I believe it is always informative 

and challenging to explore the intersection between the needs to 

safeguard our country against terrorists and criminal threats and 

the desire and need to protect our citizens’ privacy interests. It 

seems like to me that has been one of the big challenges that we 

have had to confront as we have served in the U.S. Senate, and we 

have certainly seen a great amount since 2001 and the September 

11th attacks that we have had. These questions only seem to become more and more complicated as technology advances, as travel 

and communications reflect an ever more globalized society, and as 

the dangers we face shift from easily identifiable, nation-specific 

threats to threats from more diffuse terrorist groups and affiliations. These just get to be more and more complicated and difficult, and they need a lot of expertise. That is why I am appreciative of the panel being here and providing your thoughts and 

your advice. 

New technology in some cases, unfortunately, brings with it new 

ways to misuse technology. The sad fact is that while the vast majority of Americans and visitors to our country use laptop computers and other digital devices for purely legitimate reasons and 

purposes—business, academic research, personal household management and the like—others use technology for more nefarious 

purposes. All the cases to address laptop searches at the border, for 

example, have involved individuals who are transporting child pornography on their computers. We also know that terrorists take advantage of this kind of technology. Mr. Moussaoui, for example, 

kept information on his laptop computer that, if discovered, might 

have prevented the September 11th terrorist attacks. That is a sobering thought. 

As we examine the question of when and how Government officials may search laptop computers at the border, we face two sets 

of questions—the first are legal, the second seem to be practical. 

As a legal matter, it seems clear to me that Government officials 

do have the right under the Constitution to search laptop computers and similar devices without probable cause or reasonable 

suspicion at the border. I think you address that as such. The 

Fourth Amendment prohibits unreasonable searches and seizures. 

However, the Supreme Court has long held that border searches 

are inherently reasonable and, therefore, do not violate the Fourth 

5 

Amendment. In the United States v. Ramsey, the Court examined 

that 2 months before Congress proposed the Bill of Rights, including the Fourth Amendment, it had enacted a customs statute that 

gave officials ‘‘full power and authority to enter the search’’ and 

search ‘‘any ship or vessel in which they shall have reason to suspect any goods, wares, or merchandise subject to duty shall be concealed.’’ 

The close timing of the customs statute and the Bill of Rights 

makes it abundantly clear that Congress did not think that border 

searches and seizures were unreasonable, nor did it intend to require a warrant or probable cause for such searches. The reason for 

the border search exception seems obvious. Within constitutional 

limits, a sovereign nation must have the ability to control who and 

what enters the country. In certain cases, of course, the search will 

be so intrusive that it must be justified and justifiable by reasonable suspicion. The Supreme Court and the Federal appellate 

courts have recognized that strip searches, body cavity searches, 

prolonged detentions, and certain x-ray examinations, so-called 

non-routine searches are so invasive and embarrassing that they 

must be based on reasonable suspicions. And I think those are 

right and those are appropriate to have those limitations on those 

non-routine searches. Only in cases where they are actually destructive, though, or conducted in a particularly offensive manner 

do property searches require reasonable suspicion. Otherwise, they 

are deemed routine searches and are considered reasonable by nature of the very fact that they occur at the border. 

The reason that I went through some of the legal analysis very 

quickly on this—and this does not do any of it just—is it seems 

here we are having the discussion, OK, what is reasonable and routine, and what is not reasonable and non-routine. And that goes to 

the question that we are involved in here today. 

I hope, Mr. Chairman—and I have a fuller statement to put into 

the record, but rather than going through that, I would like to get 

to the panel. I hope we can go through this on a very basis of protecting an individual’s right, but also looking at trying to protect 

the country and getting information that we need to have to be 

able to protect the country or to get at criminal elements trying to 

bring material into the country that would be deemed inappropriate, and that we can have a good discussion of what that intersection is in this technology age, in this age of ever increasing 

globalization, that we can look at this in both a constitutional way 

and in a way that we can protect the citizenry of the United States. 

So I appreciate very much your holding the hearing. I look forward to the witnesses’ comments and testimony as we explore this 

topic. 

Chairman FEINGOLD. Thank you, Senator Brownback. I think 

you have certainly correctly characterized the way we should look 

at this issue, and I believe your comments were very consistent 

with my opening remarks as well. We are trying to make sure we 

get this right. 

We will now turn to our panel of witnesses. Will the witnesses 

please stand to be sworn in? Will you all please raise your right 

hand to be sworn? Do you swear or affirm that the testimony you 

6 

are about to give before the Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. TIEN. I do. 

Mr. SALES. I do. 

Ms. GURLEY. I do. 

Mr. CUNNINGHAM. I do. 

Mr. KHERA. I do. 

Mr. CARAFANO. I do. 

Mr. SWIRE. I do. 

Chairman FEINGOLD. Thank you. You may be seated. 

I want to welcome you and thank you for being here with us this 

morning. I will ask that each of you limit your remarks to 5 minutes, as we have a full panel today. Your full written statements 

will, of course, be included in the record. 

We will begin today with Mr. Lee Tien. Mr. Tien is a senior staff 

attorney at the Electronic Frontier Foundation, a nonprofit organization that works to protect civil liberties and consumer rights in 

the digital age. Along with the Asian Law Caucus, EFF filed a 

Freedom of Information Act lawsuit seeking disclosure of DHS policies on border searches and searches of electronic devices. Mr. Tien 

specializes in free speech and privacy litigation and has written 

several law review articles on free speech and privacy issues. 

Mr. Tien, we are pleased to have you here today, and I appreciate your traveling here from San Francisco to give us your testimony. You may proceed. 

STATEMENT OF LEE TIEN, SENIOR STAFF ATTORNEY, ELECTRONIC FRONTIER FOUNDATION, SAN FRANCISCO, CALIFORNIA 

Mr. TIEN. Thank you very much. Mr. Chairman, Ranking Member Brownback, the Electronic Frontier Foundation is pleased to 

discuss an issue of growing importance to Americans’ privacy. The 

problem is simple. The Government claims that it can search any 

laptop, cell phone, or BlackBerry at the border. It does not matter 

whether you are a Senator on a fact-finding trip or a tourist on vacation. Your data is fair game. 

It is clear that most people regard this as a serious privacy invasion. People keep their lives on these devices: diaries, personal 

mail, financial records, family photos. Even Secretary Chertoff told 

this full Committee back in April, and I quote, ‘‘There are absolutely privacy concerns.’’ 

It is also a free speech problem. Journalists’ laptops and cell 

phones contain drafts of works in progress and records of their 

sources. The Government should not be able to read this information without a good reason. 

And it is a business problem. It is no surprise that a major law 

firm like Arnold & Porter recently warned its clients about the 

risks of laptop border searches. 

Now, EFF does not dispute that the Fourth Amendment works 

differently at the border, but differently does not mean not at all. 

Under the Fourth Amendment, any search must be reasonable. 

And while a routine border search is reasonable by definition, not 

all border searches are routine. 

7 

There is no bright-line rule here, but the Supreme Court has said 

that non-routine searches are largely defined by their invasion of 

a person’s dignity and privacy interests. As you have already pointed out, most courts agree that strip searches, x-ray examinations, 

and body cavity inspections are non-routine. 

Our point is that data searches also invade dignity and privacy. 

Invasiveness is not just physical. Wiretapping invades privacy 

without any kind of physical intrusion. And because our devices 

store our thoughts and communications, these searches implicate 

the First Amendment as well. Fourth Amendment requirements 

apply with scrupulous exactitude where speech is at issue. In short, 

searching a laptop, iPhone, or BlackBerry invades dignity and privacy interests and threatens freedom of speech and should require 

reasonable suspicion, not no suspicion. 

I have two more quick points before moving on to a few recommendations. First, the word ‘‘search’’ in this context is slippery. 

Border agents do not just look at laptops. They copy data and even 

seize devices. We feel that copying data is a seizure of that data. 

If the Government has a copy, you have lost your property right 

to control it. That is especially invasive. 

Now, Secretary Chertoff said in April that, as a matter of practice, DHS searches the contents of laptops or cell phones only when 

there is a reasonable suspicion, and that he believed DHS uses a 

probable cause standard before seizing a device or retaining copies 

of its contents. Well, if that is the real policy, there is no reason 

why these standards cannot be codified in the law. 

Second, if border agents can legally search any device at the border, then they can search every device at the border. ‘‘Any’’ really 

means ‘‘every.’’ Without a standard, resources are the only limit on 

this power, and technology is removing that limit. In February, 

Microsoft announced the COFEE, which stands for Computer Online Forensic Evidence Extractor. It is a USB thumb drive that contains 150 commands that can dramatically cut the time it takes to 

gather digital evidence. 

In May, the CSI Stick, which stands for Cell Seizure Investigator 

Stick, was announced. It can capture all data on most models of 

cell phones or just grab the text messages, phone books and call 

logs, or multimedia messages. 

Now, CBP may already be using such devices. My point is not 

that they should never do so; rather, it is that agents have great 

practical power to search and seize personal information. And with 

great power comes great responsibility. After all, the Fourth 

Amendment is intended to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. 

Ideally, the courts would modernize border search law. But so 

can Congress. As Senator Leahy once noted, the law must advance 

with the technology to ensure the continued vitality of the Fourth 

Amendment. The same is true here. Congress can protect the privacy of devices that typically contain e-mail and other stored communications and records. Congress can clarify that seizing data 

and devices requires probable cause. And, finally, Congress can 

make DHS accountable by requiring border agents to report their 

8 

search and seizure activities and informing people of their rights 

about any seized data or devices. 

Thank you for allowing me to testify. 

[The prepared statement of Mr. Tien appears as a submission for 

the record.] 

Chairman FEINGOLD. Thanks so much, Mr. Tien. 

We will now turn to Professor Nathan Sales. Professor Sales is 

an Assistant Professor at the George Mason University School of 

Law, where he teaches national security law and administrative 

law. Prior to joining the faculty of George Mason, Professor Sales 

served as Deputy Assistant Secretary for Policy Development at the 

Department of Homeland Security, and he previously served as 

Senior Counsel in the Department of Justice Office of Legal Policy. 

Professor Sales, thank you for being here today, and you may 

proceed with your testimony. 

STATEMENT OF NATHAN A. SALES, ASSISTANT PROFESSOR OF 

LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA 

Mr. SALES. Thank you, Mr. Chairman, and thank you, Mr. 

Brownback, both of you, for holding this hearing on an important 

issue. 

Before we talk about the law of laptop searches, I would like to 

spend a few minutes talking about the policy. Why does CBP occasionally search travelers’ computers at the border? Well, the answer is because it is an effective way of detecting child pornography and terrorism. Here is the key statistic. There have been 11 

Federal decisions testing the ability of CBP to search laptop computers at the border. Every single one of those cases has involved 

child pornography. 

Let me tell you about a man named Stefan Irving. Irving used 

to be the pediatrician for a school district in New York, but he lost 

his license and was sent to jail after a 1983 conviction for attempted sexual abuse of a 7-year-old boy. In 1998, after serving his 

time, he flew back to the United States from vacation in Mexico. 

Customs officers searched his luggage and found children’s books. 

They also found children’s drawings. They also discovered two computer disks. When they looked at the disks, they discovered numerous images of child pornography. It turns out that Irving was in 

Mexico to visit—and these are the court’s words—‘‘a guest house 

that served as a place where men from the United States could 

have sexual relations with Mexican boys’’; Irving ‘‘preferred prepubescent boys, under the age of 11.’’ 

Irving is now serving a 21-year sentence. Part of the reason he 

is behind bars and no longer preying on innocent children is because of a laptop search. 

Laptop searches are not just about child exploitation. They are 

also about terrorism. We have already heard that Zacarias 

Moussaoui kept a wealth of data on his laptop, including information about crop-dusting aircraft and wind patterns. 

In 2006, more recently, a laptop search at Minneapolis-St. Paul 

helped CBP detect a high-risk traveler. Officers inspected this 

man’s laptop and found video clips of roadside bombs being used 

9 

to kill soldiers and destroy vehicles. They also found a video on 

martyrdom. 

So what does the Constitution have to say about laptop searches 

at the border? Not much, actually. The Fourth Amendment applies 

differently at the border than it does inside the country. Here is 

how the Supreme Court puts it: Routine border searches ‘‘are not 

subject to any requirement of reasonable suspicion, probable cause, 

or warrant.’’ 

Let me give you some more statistics. There have been 11 Federal decisions in this area. Seven of the 11 hold that CBP can 

search laptops with no particularized suspicion whatsoever. Three 

courts punted. In those cases, the officers had reasonable suspicion 

to search the laptops, so it was unnecessary to consider the legal 

issue. Other than a single California district court that was reversed on appeal, no court has held that CBP needs reasonable 

suspicion. No court has held that probable cause is required. And 

no court has held that Customs has to get a warrant. 

My sense is the Supreme Court is unlikely to disturb this lower 

court consensus for a simple reason: technological neutrality. The 

privacy protections we enjoy should not depend on whether we 

store our information on paper or in the digital world. Officers can 

search mail, they can search address books, they can search photo 

albums at the border with no suspicion at all. Why should the rule 

change when we keep our correspondence, contacts, or pictures on 

a laptop? The mere fact of computerization should not make a difference to the scope of our privacy rights. 

Now, while the Fourth Amendment does not have much to say 

about laptop searches, it is not the end of the conversation. Policymakers should consider adopting a few safeguards above the constitutional floor. For starters, CBP might usefully shed some light 

on the standards it uses for picking people for laptop searches. Are 

they selected randomly? Because of travel history? Because of tips 

from other Government agencies? What about observations regarding passenger demeanor? More transparency here would help assure people whose laptops are searched that they were picked for 

legitimate law enforcement reasons and not because of impermissible characteristics such as race or religion. 

Also, CBP might adopt standards on what it does with data copied from laptops. If a search does not uncover anything illegal, CBP 

would be hard pressed to justify keeping files from a passenger’s 

computer. For data that it does keep, CBP should strictly enforce 

policies that punish employees who access it or disclose it without 

authorization. Also, CBP should take special care to see that any 

sensitive business information, such as trade secrets or attorneyclient privileged materials, are handled with all appropriate discretion. 

Mr. Chairman, thank you again for the opportunity to testify. I 

would be happy to answer any questions. 

[The prepared statement of Mr. Sales appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you, Professor Sales. 

Now we will turn to Susan Gurley. Ms. Gurley is the Executive 

Director of the Association of Corporate Travel Executives, a nonprofit education and advocacy organization supporting the global 

10 

corporate travel industry. Ms. Gurley has been instrumental in the 

ACTE’s development of data privacy, travel security, and corporate 

social responsibility initiatives. Under Ms. Gurley’s leadership, the 

ACTE has taken an active role in voicing concerns about 

suspicionless searches and seizures of electronic devices at the border. 

Ms. Gurley, thank you for being here, and the floor is yours. 

STATEMENT OF SUSAN K. GURLEY, EXECUTIVE DIRECTOR, ASSOCIATION OF CORPORATE TRAVEL EXECUTIVES, ALEXANDRIA, VIRGINIA 

Ms. GURLEY. Thank you. Chairman Feingold and Senator 

Brownback and distinguished members of this Committee, I appreciate this opportunity to present the views of the Association of 

Corporate Travel Executives, known as ACTE. The seizure of electronic devices from travelers is real, and it is not mere speculation. 

ACTE represents the safety, security, and financial interests of 

business travelers, and we represent more than 2,500 members 

from 82 countries, including the United States. ACTE’s members 

represent over $300 billion in annual business travel expenditures 

and are among the companies listed in the Fortune 1000. 

ACTE’s member companies are responsible for over 1 million 

business travelers and have hundreds of thousands of business 

travelers on the road at any given time. They routinely cross U.S. 

borders. All of these U.S. and international business travelers who 

cross U.S. borders have two things in common: All carry electronic 

devices, and all are currently subject to the claimed authority of 

DHS officials to inspect and seize these electronic devices without 

suspicion or warrant. Thus, ACTE is requesting improved and 

transparent communications from DHS regarding the policies and 

safety measures it has in place to protect downloaded data. 

We specifically ask that the following actions be taken: 

We hope that this Committee requests a Privacy Impact assessment from DHS on the number of seizures of laptops or other electronic devices. The assessment should also ask for the minimum, 

average, and maximum amount of time that it takes to return the 

electronic devices to the owner and the reasons for the seizure. 

We request that the policies regarding electronic device seizure 

and data retention policies be published by DHS in the Federal 

Register and on the agency’s home page. These published policies 

should included at a minimum the following: policies for protecting 

the integrity of the data; policies for the length of time seized data 

will be stored and where and how it will be stored; policies for 

whether the downloaded information will be shared and, if so, with 

what other U.S. Government and international agencies and under 

what circumstances; information as to what rights the traveler has 

to ensure that their electronic device is returned. 

I am here to advise you that the seizure, copying, and retention 

of sensitive business information imposes both a personal and economic hardship on business travelers and their corporations. In today’s wired and networked and borderless world, one’s office no 

longer sits within four walls or a cubicle. Rather, one’s office consists of a collection of mobile electronic devices. It is common for 

business travelers to carry their electronic devices that contain 

11 

business, financial, and personal information. These devices constitute the office of today. Under the U.S. Constitution, a warrant 

is needed to search a physical space such as an office. Yet the unanticipated seizure of one’s mobile office has been allowed to occur 

and can immediately deprive an executive or a company of the very 

data and, most importantly, revenue a business trip was intended 

to create. 

As a businessperson returning to the U.S., you may find yourself 

effectively locked out of your mobile office indefinitely, and thereby 

deprived of the resources required to sustain your livelihood. In the 

case of an independent entrepreneur, a laptop seizure can represent the loss of his or her entire business. 

It can be argued that the percentage of seized computers and 

data is small in comparison to the total number of travelers crossing the border. But we simply do not know. Due to DHS’ lack of 

transparency, the actual number of seizures, the extent of data 

downloading, and potential data breach are not known. Here is 

what we do know: ACTE surveyed its members in February 2008 

on this issue. Seven percent reported that they had been subject to 

the seizure of a laptop or other electronic device. The survey also 

revealed that 81 percent of survey respondents were unaware that 

the informational electronic devices could be copied and held indefinitely. Even though the total number of business travelers subject 

to these searches and seizures can only be estimated, what is certain is the severe economic and behavioral impact that can follow 

when a laptop is seized. Fifty percent of the respondents to ACTE’s 

2008 survey indicated that having a laptop seizure could damage 

a traveler’s professional standing within a company. The seizure of 

data or computers carrying business proprietary information has 

and will force companies to implement new and expensive internal 

travel policies. 

In fact, this is already happening. Costly and time-consuming 

travel measures that companies are mandating include having 

their business travelers send data to themselves via web-accessible 

e-mail, encrypting files, or using secure USB drives. In addition, 

companies are purchasing additional computers that are scrubbed 

of any prior e-mails so that they can be used by business travelers 

on their trips. 

All of these measures and business behavior changes cost time 

and money. In today’s economy, American businesses do not need 

additional and unnecessary financial burdens placed upon them. 

Thank you very much. 

[The prepared statement of Ms. Gurley appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you, Ms. Gurley. I will now turn to 

Mr. Larry Cunningham. Mr. Cunningham is an Assistant District 

Attorney in Bronx County in New York City and in short order will 

be starting work as an Assistant Professor of Legal Writing at St. 

John’s University School of Law. He has also taught law courses 

at Brooklyn Law School, Texas Wesleyan University School of Law, 

Stetson University College of Law, and Texas Tech University 

School of Law. 

Mr. Cunningham, welcome to you as well, and you may proceed. 

12 

STATEMENT OF LARRY CUNNINGHAM, ASSISTANT DISTRICT 

ATTORNEY, BRONX COUNTY; ASSISTANT PROFESSOR OF 

LEGAL WRITING, ST. JOHN’S UNIVERSITY SCHOOL OF LAW, 

QUEENS, NEW YORK 

Mr. CUNNINGHAM. Thank you, Mr. Chairman, and I would also 

like to extend my appreciation to you for holding this hearing on 

this very important topic. 

I taught the law of search and seizure as both a full-time and 

adjunct professor. I have also conducted research and written in 

the area of border searches, and this is what I found. 

Historically, the Government has had broad authority to conduct 

searches at the international border without suspicion and without 

the need to obtain warrants. Case law speaks of the sovereign having an inherent right to protect the country from the importation 

of illegal or dangerous items. The Supreme Court has also recognized that persons who cross the border have a low expectation of 

privacy, in part because even if the United States adopted a relaxed border search policy, travelers would still be subjected to 

search by the countries that they would be traveling to or from. 

The Supreme Court has required reasonable suspicion only when 

an invasive search of the human body is contemplated. The rationale for this higher standard is concern for the dignity of the person, 

not just privacy. I have uncovered no appellate court decision that 

has extended this same protection to laptop computers. 

Without doubt, anyone whose property has been searched, 

whether it is a laptop or a briefcase, will feel that his or her privacy has been violated. However, the Constitution recognizes that 

some governmental invasions of privacy are permissible. After all, 

the Fourth Amendment does not prohibit searches, only unreasonable ones. 

There is also no doubt that many people do keep very personal 

information on their laptop computers, but the same can be said 

for travelers who keep their checkbooks, medications, photographs, 

political literature, love letters, or personal diaries in their briefcases or luggage. No one likes the idea of the Government seeing 

these things, yet absent a drastic change in the law, each of these 

tangible, non-electronic items can be seen and examined by customs without reasonable suspicion. 

So the question boils down to this: Is there something different 

about laptop computers that warrants disparate treatment from 

briefcases, suit pockets, and purses? Some would argue that there 

is, because laptops are readily capable of storing large amounts of 

information and that in some cases even deleted items can be undeleted and read. However, the Fourth Circuit in United States v. 

Ickes pointed out that in-depth searches are likely to be few and 

far between because of the lack of resources and time. In fact, the 

case law on this subject demonstrates that the typical laptop 

search is quite cursory, with travelers simply being asked to quickly open and power on their computers for a quick visual inspection. 

Full-scale searches and the un-deleting of files are reserved for situations in which the initial observation has aroused an agent’s reasonable suspicion. 

There are significant societal interests at stake here. Each of the 

cases I have found, as Professor Sales mentioned, have involved deVerDate Aug 31 2005 12:03 Nov 13, 2008 Jkt 045091 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45091.TXT SJUD1 PsN: CMORC
13 

fendants attempting to bring child pornography into the country. 

Congress itself has recognized the importance of catching and punishing this criminal behavior by providing steep penalties for the 

importation, distribution, and possession of child pornography. 

Moreover, as the Fourth Circuit recognized in Ickes, without a robust, random border search policy, terrorist or other international 

criminals could use laptops as a means to smuggle messages and 

plans into the country for distribution to cells and allies. Such a 

means of communication might prove more attractive than traditional phone or Internet communications because of the possibility 

of surveillance. 

It would seem prudent, however, for the administration to require these searches to be conducted by trained personnel, under 

supervision, and away from public view, and to disclose records of 

searches which they acknowledge in a Supreme Court case that 

they keep to not only the DHS Inspector General but also to this 

body in closed session to ensure that searches are not being conducted in a racially discriminatory manner or for other improper 

reasons. 

Finally, nothing in the Constitution, at least in my view, would 

permit the Government to seize a laptop or copy or otherwise retain its contents without some suspicion that it contained evidence 

of a crime. Such a seizure would be a violation, in my view, not 

just of the right to privacy but also of the owner’s property interest 

in the computer. 

Mr. Chairman, I would be glad to answer any questions that you 

have. 

[The prepared statement of Mr. Cunningham appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Mr. Cunningham. 

We will now turn to Farhana Khera. Ms. Khera is the President 

and Executive Director of Muslim Advocates in San Francisco, 

California. Muslim Advocates is a national legal advocacy and educational organization dedicated to promoting freedom, justice, and 

equality for all, regardless of faith, and serving as a legal resource 

to promote the full and meaningful participation of Muslims in 

American civil life. Prior to her work with Muslim Advocates, I was 

lucky enough to have Ms. Khera on my Constitution Subcommittee 

staff here in the Senate. Ms. Khera and I worked together for 6 

years, and I am indebted to her for her work and advocacy on 

issues ranging from the PATRIOT Act to racial profiling to women’s rights. The record should reflect that she is a wonderful person 

and was a wonderful staff member. I am pleased to have her back 

in the Senate, if only for the morning. 

Ms. Khera, you may proceed. 

STATEMENT OF FARHANA Y. KHERA, PRESIDENT AND EXECUTIVE DIRECTOR, MUSLIM ADVOCATES, SAN FRANCISCO, 

CALIFORNIA 

Ms. KHERA. Thank you very much, Mr. Chairman, especially for 

those very kind, kind words. I do not think I would have imagined 

myself being on this side of the dais during those 6 years. 

Mr. Chairman, Senator Brownback, good morning. On behalf of 

Muslim Advocates, I am pleased to share with you the experiences 

14 

of Muslim, Arab, and South Asian Americans returning home from 

international travel. 

The Department of Homeland Security and Customs and Border 

Patrol have an important duty to protect our borders. The American people, including Muslim Americans, rightfully expect these 

agencies to protect us from those who would seek to enter to do us 

harm. But at the same time, we expect our Nation’s border policy 

to be sound. It should be rational, fair, and effective. 

Complaints from Americans traveling overseas received by Muslim Advocates and other civil rights groups, however, suggest otherwise. These Americans report that at airports and border crossings, after they have verified their identity and described the purpose of their travel, they have been subjected to more intensive 

scrutiny, all without any reasonable suspicion that they are engaging in criminal activity. These experiences involve not only 

searches and seizures of laptops, cell phones, and digital cameras, 

but perhaps even more troubling, questions about First Amendment-protected matters. 

Mr. Chairman, my written testimony sets forth a number of 

these complaints, but this morning I would like to share with you 

two of them. 

The first is that of an executive vice president of a major hightech firm in the greater Seattle area. He is a husband, father of 

three, and a business leader who has helped drive innovation in 

our country. He has also been a community leader, having established a mosque and spearheaded interfaith activities with Christian and Jewish communities. He has testified before Congress on 

IT issues, was recognized by the Interfaith Alliance, and is proud 

to call America home. 

He travels frequently due to the demands of working for a global 

company. Since early 2007, on at least eight occasions, he has been 

subjected to invasive and intensive questioning, searches, and seizures upon his return home from travel to various countries, including Japan, Canada, Turkey, the U.K., and Europe. 

CBP agents have interrogated him about the names, birth dates, 

and addresses of family members living abroad and in the U.S., 

which mosque he attends, and his activities on behalf of a lawful 

Muslim charitable organization he helped establish near his home. 

CBP agents have also searched his cell phone, made copies of various documents on several occasions, and extensively searched his 

belongings, as well as those of family members traveling with him. 

Mr. Chairman, the second story is that of a young corporate lawyer, a graduate of Georgetown University Law Center and currently practicing with a prominent law firm on the west coast. She 

in many ways embodies the American dream. The child of immigrants from Pakistan, she grew up in the northern central valley 

of California. She worked hard, went to top schools, and has established herself with a stable career, making her family proud. This 

spring, she took a trip to Pakistan to visit her relatives. On her return, which was a 20-plus-hour trip via East Asia to San Francisco, 

she was exhausted from the long travel and frustrated after learning that the airline had lost one of her bags. After she presented 

her passport and verified her identity, she, nevertheless, was 

pulled aside and her remaining bags were searched. The CBP 

15 

agent took her digital camera, viewed its images, and asked her to 

identify the people photographed. Her camera included photos of 

her mother during her travel overseas, as well as photos taken of 

her family and friends while she was in the U.S. The CBP agent 

also saw a book in her bag on one of the Presidential candidates 

and then proceeded to ask her her views of the candidates in this 

year’s race. 

We have reason to believe that these stories are not isolated but, 

rather, suggest a troubling pattern of targeting Americans who are 

Muslim or of Arab or South Asian descent. If so, it would be wrong 

and a violation of the equal protection guarantees of our Constitution. 

These experiences also suggest that CBP’s power at the border 

is overly broad and its practice and policies ineffective. I think we 

can all agree that neither the corporate vice president nor the 

young lawyer pose a threat to our security nor engaged in wrongdoing. 

So why were these Americans stopped? How is CBP power being 

used? These and other questions must be answered. DHS and CBP 

have a critical responsibility to protect our Nation’s borders. At the 

same time, these agencies, which have been granted enormous 

power by the American people, have an obligation to wield that 

power consistent with the rights and protections guaranteed by the 

Constitution to all Americans, regardless of faith, ethnicity, or race. 

And Congress must ensure that they do so. 

I refer the Subcommittee to my written testimony for specific recommendations for steps Congress can take. 

Mr. Chairman, thank you for the opportunity to present the 

views of Muslim Advocates and for holding this hearing. I look forward to your questions. 

[The prepared statement of Ms. Khera appears as a submission 

for the record.] 

Chairman FEINGOLD. Thanks so much, Ms. Khera. 

Next up is James Carafano. Mr. Carafano is the Assistant Director of the Kathryn and Shelby Cullom Davis Institute for International Studies, and Senior Research Fellow at the Douglas and 

Sarah Allison Center for Foreign Policy Studies, both at the Heritage Foundation. He is an expert in defense affairs, military operations and strategy, and homeland security. Mr. Carafano is a 

graduate of West Point, and he also holds a master’s degree and 

doctorate from Georgetown University and a master’s degree in 

strategy from the U.S. Army War College. 

Mr. Carafano, thank you for being here today to share your testimony. You may proceed. 

STATEMENT OF JAMES JAY CARAFANO, ASSISTANT DIRECTOR, KATHRYN AND SHELBY CULLOM DAVIS INSTITUTE FOR 

INTERNATIONAL STUDIES, AND SENIOR RESEARCH FELLOW, 

DOUGLAS AND SARAH ALLISON CENTER FOR FOREIGN POLICY STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, 

D.C. 

Mr. CARAFANO. Thank you, Mr. Chairman. I want to offer five 

principles for congressional action. These are based on my years of 

research and experience looking at border security issues. 

16 

Just an observation as a preamble. The mission of Homeland Security and, indeed, the mission of Government is to enable Americans to live their lives in freedom, safety, and prosperity and to implement policies that serve all three of those goals equally well. 

That is nowhere more important than the issues of border security. 

One of my great frustrations is that we myopically often talk 

about border security and just focus on the border when, in reality, 

the way you make a border secure is addressing any criminal or 

malicious or terrorist activities. It is really thinking about the spectrum of terrorist travel or malicious activity from its origin to its 

point of destination in the United States, and not myopically focused just at the border. However, border security is important, 

and nowhere is it more important than at our ports of entry and 

exit. We have enormous data on known terrorist travel, including 

the 9/11 Commission report. Overwhelmingly what we know is 

known terrorists travel mostly through established points of entry 

and exit. And we know that a wide variety of criminal and malicious activity also enter and exit our legal points of entry and exit. 

So getting it right at the ports of entry and exit is nowhere more 

important. 

I think there are number of vital issues here for the Congress to 

address. Actually, the legal issues would not be highest on my list. 

Much more important, I think, are infrastructure issues and creating a border infrastructure that we need both to do inspections 

expeditiously and effectively and to reduce transaction times in our 

border which are increasing and are increasing the cost of doing 

business in the United States. 

Border searches are a vital part of the port of entry and exit. I 

do not think that is questions. We all know the most famous case 

of all, which was the millennium bomber, where a border officer 

asking some very, very innocent questions—including ‘‘Where are 

you going? ’’ and ‘‘Where are you staying? ’’—was able to identify a 

high-risk traveler, and an inspection later showed that he was carrying explosives and was planning to blow up a target in Los Angeles. So getting it right is incredibly important. 

For me, the efficacy of border searches will lie less in the issues 

of narrow legal opinions and much more on the issues of focusing 

on the critical technology and human capital programs that the Department has to implement so it can do these border searches in 

an effective and reasonable and secure manner. So I would offer 

five guidelines for the Congress as it thinks through where it is 

headed on this. 

First and most importantly, from a security standpoint, it would 

be a grave mistake and an error to create any technology as a sanctuary, where someone had a sanctuary in terms of bringing materials into the United States, and anything that impeded the ability 

to conduct reasonable and routine searches of any technology or 

emerging technology would be an enormous mistake. 

Second, the border agents need to retain broad authority in how 

they implement their powers. They have limited time and limited 

information to make their inspections. Obviously, human capital 

programs and added technology will improve their efficiency. But 

at the end of the day, we do rely on the men and women standing 

17 

at the border to get it right, and we have to give them the broad 

authority that they need to do their job. 

And, third—and this I think is important; I do not think anybody 

on the panel has mentioned it—we need to really make sure that 

we do not force the Department to disclose a level of information 

that would allow malicious actors, whether they are criminals or 

terrorists, to identify specific patterns of inspection and behavior 

that would allow them to figure out how to bypass security inspections at the border. So we do, from an operational security standpoint, have to be careful about how much information we publicly 

disclose, although I think the issue of transparency is vitally important. We should disclose as much as possible, and certainly Congress should be informed on these critical issues. 

Fourth, any process of inspecting at the border has to be riskbased. Any inspections that are merely based on whim or any kind 

of racial profiling are wrong not just from a legal standpoint, but 

they are even more wrong from an efficiency standpoint. You have 

scarce time and scarce resources at the border. Wasting them on 

people who are not high-risk travelers is simply unconscionable behavior. And all inspections, all reasonable searches, should be 

based on risk-based assessments. 

My last point is that there should be, obviously, a requirement 

that as DHS deals with any kind of data they inspect at the border, 

that they deal with it in a responsible and professional manner. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Carafano appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Mr. Carafano. 

And, finally, we turn to Professor Peter Swire. Professor Swire 

is a professor at the Moritz College of Law at the Ohio State University and a Senior Fellow at the Center for American Progress 

Action Fund. He is an expert in the fields of privacy law and computer security. From 1999 to 2001, he served as Chief Counsel for 

Privacy in the U.S. Office of Management and Budget. In that role, 

he was responsible for coordinating administration policy on public 

and private sector uses of personal information. 

Professor Swire, thank you for coming, and you may proceed. 

STATEMENT OF PETER P. SWIRE, PROFESSOR, MORITZ COLLEGE OF LAW, THE OHIO STATE UNIVERSITY, AND SENIOR 

FELLOW, CENTER FOR AMERICAN PROGRESS, WASHINGTON, 

D.C. 

Mr. SWIRE. Thank you, Mr. Chairman. 

There is no dispute today that with the right factual basis, the 

Government can search laptops. The focus of the hearing is when 

they do not have that kind of suspicion and basis, what should the 

policy and the law be, and that is what we will focus on. 

I agree with many of the concerns already expressed today by 

you, Mr. Chairman, and by other witnesses. The focus of my testimony is on comparisons to the encryption policy battles we had in 

the 1990s and that I worked on when I was in the White House. 

At that point, we treated things very differently in encryption when 

across the border, and we tried to use the border for a while as 

Government policy as an excuse to search computing in very intruVerDate Aug 31 2005 12:03 Nov 13, 2008 Jkt 045091 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45091.TXT SJUD1 PsN: CMORC
18 

sive ways. That policy was eventually rolled back, and I am going 

to list eight comparisons today between the encryption battles then 

and laptop border searches today. 

The first one is that traditional legal arguments apply badly to 

new facts about computing. In the encryption policy area, there is 

a legal tradition that wiretap orders were going to be effective, and 

so the Government wanted wiretap orders to be effective even 

when there was encryption, so we needed to get all the encryption 

keys. 

Today, the Government in the laptop area is saying it is the 

same old border searches we have always seen for 200 years; there 

is nothing to see here and move on. But I think there is something 

to see here, and that is why we have the hearing today. A laptop 

contains all of the books printed in human history up until sometime into the late 20th century, and the idea that we are just going 

to trust the Government with this amazing ability to copy all this 

data I think is a concern and something different. 

The second comparison is that the Government forces disclosure 

of encryption keys. For people who do not spend their time focusing 

on encryption, which is most normal people, I will give a quote 

from the founder of EFF, who said, ‘‘You can have my encryption 

algorithm, I thought to myself, when you pry my cold dead fingers 

from its private key.’’ Getting people’s encryption keys at the border is a big deal. It led to a big fuss once before. 

Number three is that these kinds of searches are a severe violation of computer security best practices. My testimony explains this 

in some detail, but the basic rule in computer security is do not let 

strangers into your computer. You can get infected. You can have 

malware put on it. You can never entrust that platform again. It 

violates best industry practice. It violates all the training we are 

doing in our security infrastructure if we have routine searches of 

business computers. It should not happen. 

Fourth, the U.S. policy can create bad precedents that totalitarian and other regimes can follow. I invite you here to think 

about if China or other countries going forward make their customs 

something like this: step one, go through customs; step two, make 

a copy of your hard drive; step three, we will see you next time. 

And if that applies to Senators and their staffs when they go on 

foreign missions, you are not going to want to have that as policy. 

If the U.S. does border searches all the time and it becomes increasingly easy with technology to make these copies, then we have 

gotten on the wrong side of the issue. It is hard for us to complain 

when other countries intrude into our privacy. 

The fifth comparison is severe harm to personal privacy, free 

speech, and business secrets. Other witnesses and my written testimony talk about these invasions of privacy, the problems for free 

speech and the rest. 

A sixth comparison with the encryption battles of the 1990s is 

the disadvantages to the U.S. economy. That was a major strike 

against the encryption policy because we were helping foreign competitors. When it comes to foreign conferences that will not want 

to come to the United States, when it comes to the idea of whether 

the U.S. is open for tourists and for business to visit without feelVerDate Aug 31 2005 12:03 Nov 13, 2008 Jkt 045091 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45091.TXT SJUD1 PsN: CMORC
19 

ing deeply intruded, I think we have to think about the effect on 

the U.S. economy of intrusive searches at the border. 

A seventh comparison to the encryption battles is the political coalition that developed of civil liberties groups and business. We see 

that today. It is a similar line-up to what we had 10 years ago 

where we have EFF, we have the Muslim Advocates, we have business groups complaining here. And for someone such as I who 

spent a lot of time with the tech community, I think this issue may 

be a much hotter thing than people have realized. It may mobilize 

the reserve army of outraged techies. And if that happens, we are 

going to see a lot of yelling and screaming and a lot of concerns 

from corporate and other security experts. This is, again, I think 

a big deal. 

The eighth and final comparison I would make between 

encryption in the 1990s is the technical futility of current U.S. policy. In crypto, we eventually saw that there were work-arounds to 

the U.S. policy. Those work-arounds already exist and are easily 

found on the Internet today. I cite in my testimony articles on the 

Internet that tell you how to keep your data secret from customs 

when you go through the border. Any moderately smart terrorist 

can find these articles if they just read the hearing transcript for 

today, for instance, and they will be able to get through the border. 

And also if they are willing to lie, they can get standard software 

today where they can double encrypt their laptops so the customs 

people cannot find it. 

So for these eight comparisons, we see that it is bad policy and 

ultimately futile to have this. It invades computer security and privacy and free speech and business secrets and sends the wrong signal to the rest of the world, and I think we should change the policy. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Swire appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you so much, Professor, and thanks 

to all of you for your excellent testimony. 

I will start a round of questioning. Senator Brownback had to go 

to something else, but he is going to try to come back to ask questions as well. So I am going to start going through my questions, 

but obviously, if and when he comes back, we will turn to him and 

any other Senator who wants to ask questions. 

Before we go to the questions, though, there have been some very 

informative news reports on this subject recently, including a February 7, 2008, article in the Washington Post and an article posted 

yesterday on the U.S. News & World Report website. Without objection, these will be made part of the record. 

Also, Senator Leahy, the Chairman of the full Committee, has a 

statement he would like to put in the record, so without objection, 

I will do that as well. 

I will start the first 7-minute round. Professor Swire, some of the 

witnesses here have testified that we must allow suspicionless 

searches of U.S. citizens’ laptops at the border because laptops can 

contain evidence of serious crime or even terrorism. Obviously, I do 

not dispute that laptops can contain such information. But, of 

course, that very same evidence can exist on laptops located inside 

20 

U.S. citizens’ homes. And yet even if there were no constitutional 

barrier whatsoever to police officers walking into your house to conduct suspicionless laptop searches, I think we would all agree that 

such searches should not be permitted. 

As a policy matter, do you believe the liberty, privacy, and economic interests at stake in these border searches outweigh any security benefit to be gained by conducting them? 

Mr. SWIRE. Yes, I do, Senator. Thank you. I think when people 

cross the border these days using the Internet, they can use strong 

encryption. We have that written into law now. When people are 

at home, they can use strong protections against these kinds of invasion. The idea that you are at the border and you have to reveal 

your passwords and encryption keys is something that is quite remarkable. It is very intrusive. It is bad for privacy and security. 

And we do not—a couple of the witnesses in their written testimony talked about the principle of technology neutrality, that we 

should not treat laptops different from other things. Technology 

neutrality is we can cross the border today using strong encryption, 

using the Internet. And I think technology neutrality says that 

same computing should cross the border in laptops. So we as a 

matter of policy should have much stricter limits than we do currently in this area. 

Chairman FEINGOLD. Ms. Gurley, one argument in support of allowing suspicionless laptop searches is that customs agents have 

always been free to search the contents of briefcases, which also 

carry confidential business information such as trade secrets or attorney-client communications. But there is a big difference between 

rifling through documents in a briefcase to look for weapons or contraband and picking up the documents and reading them. I would 

imagine that if customs agents had been reading business documents, we would have heard about a long ago. 

Is that right? Or has it always been a normal part of business 

travel for customs agents to read and even copy the documents in 

travelers’ briefcases? 

Ms. GURLEY. It is our understanding that customs would look for 

contraband, and they would only copy the information that had a 

nexus with the contraband or the actual potential crime. The difference here is that they basically copy everything, so the vast 

amounts of information that are being copied are beyond the actual 

potential crime. So it is not just contraband. It is anything, including the fact that if you were a businessperson and you were carrying documents across the border, those were physical documents. 

If I am carrying as a businessperson my computer over, I also have 

erased documents. They can get to that as well. If I have one or 

two, I drafted something, I have deleted it, customs can, in fact, 

copy that as well and find it. In the olden days, if I did not bring 

it, they could not find it. 

But the big issue for the business travel community is let’s say 

you are not a pornographer, let’s say you are not a terrorist. Let’s 

say you are not engaged in any criminal activity. You are a 

businessperson. You are people like us doing their regular business, and your information is seized. The data is downloaded. And 

it turns out there is nothing going on. Why can’t the U.S. Government tell us how long they are going to retain the information? Are 

21 

they going to destroy the information? What are the doing with 

that information? That lack of information causes incredible anxiety to the business community, and putting all the constitutional 

law issues aside, which are critical, the issue is we should have a 

transparent Government. We find that there is no criminal activity. 

Why can that information not be returned? 

Chairman FEINGOLD. Let me just pursue the briefcase question 

so I can get a sense of what the current practices are. Were you 

suggesting that the only thing that would trigger the reading or 

copying of a document would be the presence of contraband? Or 

let’s say somebody was stupid enough to write down in a letter that 

they would like to buy some drugs. Would customs agents read 

that letter, apart from the contraband being in there, and make a 

copy? 

Ms. GURLEY. I would assume they would make a copy of that, 

and that makes eminent sense. If you find a letter saying I am a 

drug dealer— 

Chairman FEINGOLD. Apart from there being contraband present 

within the briefcase. 

Ms. GURLEY. Right. But now they would go through every piece 

of information, including your love letters, including your bank— 

so there is a big difference in how information is disseminated and 

brought across borders now than even 15, 20 years ago. 

Chairman FEINGOLD. Fair enough. An excellent answer. 

Mr. Tien, I have a related question for you. A few of today’s witnesses have claimed that under existing case law, specifically 

United States v. Ramsey, customs agents are allowed, without any 

reasonable suspicion, to read the contents of paper documents that 

U.S. citizens carry or send across the border. But as you know, the 

Supreme Court in Ramsey held only that customs agents could 

open international mail—in that case, to see if it contained heroin. 

Indeed, the primary reason the Court rejected the defendant’s First 

Amendment challenge is that a Federal statute prohibited customs 

agents from reading international mail without a warrant. 

Are you aware of any case in which the Supreme Court has held 

that customs agents can read the contents of travelers’ personal 

documents without any reasonable suspicion? 

Mr. TIEN. Well, Senator, you are absolutely right about the way 

that Ramsey does that, and I am not aware of any cases that have 

specifically authorized that kind of reading. This is one of those situations where the Supreme Court case very, very clearly says we 

do not need to decide this First Amendment issue because we already have congressional and regulatory protections for the privacy 

of people’s mail. The current law may be slightly different, and one 

of the things that I wanted to point out, especially in conjunction 

with Ms. Gurley’s testimony about transparency, is that when we 

have asked CBP for documents about how they handle the looking 

at or the photocopying of documents, we get back from CBP redacted, blacked-out sections about their policies and practices with 

respect to documents. So it is very unclear. 

Chairman FEINGOLD. Thank you, sir. 

Ms. Khera, the conduct you have described on the part of customs agents is quite shocking. I think most people here would 

agree that customs agents should not be asking travelers why they 

22 

converted to Islam, for example. I suspect if a DHS official were 

here, he or she would say that DHS does not condone these questions, that these are isolated cases of customs agents behaving 

badly. But, of course, the only way to ensure a certain level of conduct is to require it, and to punish any violations of that requirement. 

To your knowledge, are there any DHS regulations or any Federal laws that specifically prohibit customs agents from engaging 

in the kind of questioning identified in your testimony? 

Ms. KHERA. Mr. Chairman, we are not aware of any specific regulations that govern CBP in this area. We believe that CBP is instead relying on age-old statutes as well as we have reason to believe that they are relying on internal policy guidance. But the 

problem is that that internal policy guidance is not public. My colleagues, the Electronic Frontier Foundation and the Asian Law 

Caucus, have actually sought to get copies of policy guidance, directives, potential training materials that are given to CBP agents. 

And CBP has not been forthcoming about that material. I think as 

we have been discuss this morning, in order to for Congress and 

the American people to understand how the power, the immense 

broad power of CBP is being used at the border, we do need that 

information, and I think Congress should be rightfully seeking that 

information. 

Chairman FEINGOLD. Thank you. 

As promised, Senator Brownback has returned to do a round of 

questions, and I also want to welcome Senator Durbin, who has 

joined us. 

Senator BROWNBACK. Thanks, Mr. Chairman. I want to apologize 

to the panel and to the Chairman. I had another hearing that I 

was Ranking Member on. They did not both consult me on the time 

of this. I do not know why I do not get a little more respect around 

here. Maybe I should take that as a notice. 

I want to ask, if I could, it seems like in both the Chairman’s 

and my opening statements, we agreed kind of on the premise, and 

then we both have questions then on the practicality and the implementation of this, is what the Fourth Amendment applies to as 

far as at the border, the rights of the country to be able to protect 

itself, and seeking information, and then this area that the court 

has tried to figure out is where does the search become so invasive 

that it is subject to a higher-level standard of review. That is the 

rub point here. 

Professor Sales, I wish I could have caught the rest of your testimony. I apologize. But I appreciated your trying to weave through 

that. How is it that you look at the issue of a search of a laptop 

at the border? Is that something that needs to have a heightened 

level of review or not, as you would look and reading the Fourth 

Amendment decisions that have come down? I take it from what 

your testimony was that the majority of courts are saying it does 

not require that. 

Mr. SALES. Yes, Senator, that is right. My sense is that courts 

have held—and the Supreme Court, if presented with the question, 

would hold—that reasonable suspicion is not required to justify a 

laptop search at the border. There is no question, Senator, that 

laptops are different from a suitcase. A laptop is a container, like 

23 

a suitcase is, but a laptop is capable of containing vast amounts of 

data. An 80-gigabyte hard drive can store, I think, the equivalent 

of tens of millions of printed pages. So laptops are different. 

The question, however, is whether laptops are different in a constitutionally significant respect, and I think the answer to that 

question is probably no. I think Customs already has broad authority under the Supreme Court’s border search precedents to search 

property, even property that contains extremely sensitive information. I would actually commend to you a Texas district court decision that was released just last week. This opinion discusses the 

sorts of property that are subject to border searches, suspicionless 

border searches: people’s wallets, purses, locked glove boxes, locked 

containers or luggage, State and Federal identification cards, Social 

Security cards, medicines and medical records, names and addresses of family and associates, day planners with itineraries and travel documents, credit cards, checkbooks, registries. The list that the 

court provided goes on and on. 

Senator BROWNBACK. When I have been on the border, I have 

seen x-ray machines that sat there apparently for some routine 

searches of big trucks in some settings like that. Those are used 

even as, I guess, an invasive type of device. 

But I have to say as well, too, you know, I do not like the idea 

of coming across with my BlackBerry and somebody saying, OK, I 

want to look through your whole BlackBerry, because I have got a 

lot of things in it. I do not know what all is on there in some cases, 

and I do not want people looking at that randomly. Do I waive that 

right in coming across the border? 

Mr. SALES. Well, Senator, understandably, people treat the personal data that they store on their electronic devices with great 

sensitivity, and they regard it as very important. But the Supreme 

Court has held that the expectation of privacy at the border is different than the expectation of privacy within the country. So while 

we would rightly condemn suspicionless or especially warrantless 

searches of your BlackBerry or your laptop on the streets of Washington, D.C., the analysis has to change a little bit at the border. 

And the Supreme Court has held that the criterion of reasonableness at the border is the fact that it is the border. In other words, 

a border search is reasonable under the terms of the Fourth 

Amendment because of the simple fact that it occurs at the border. 

Senator BROWNBACK. Mr. Tien, I do not know if you note in your 

testimony—somebody did—that you can search—if you have got a 

bunch of photographs with you and you are coming through the 

border, the border agents can search and look through those photographs. Is that correct? And that is deemed routine. Is that correct? 

Mr. TIEN. Under current law, yes. 

Senator BROWNBACK. But if we have a digital camera, I take it 

from what you are putting forward, you are saying, Well, I do not 

think that is reasonable to do a digital camera. 

What is the difference between looking at those two at the border? 

Mr. TIEN. What we have been talking about is a general category 

of electronic devices that range from a laptop and your BlackBerry 

to a digital camera. And our feeling is that for all of these, you 

have a number of differences between the sort of non-electronic 

24 

version and the electronic version, and probably the most important— 

Senator BROWNBACK. Which is? What is the difference? 

Mr. TIEN. There is a quantity difference. There is a quality difference. And I think sort of to extend the point that Professor Sales 

made, there is a scope of search difference. The quantity difference 

is simply that you can have way, way more information: an 80- 

gigabyte drive is just an unbelievable amount of information. 

Senator BROWNBACK. I am getting short on time here. I just have 

some question about whether quantity raises your level of expectation of privacy at the border and your other—but let me also pursue this with you if I could. If we were to as a Congress say we 

want to tighten up this authority for what the border search could 

do, wouldn’t we be conveying to people that travel overseas for illegal activities, wouldn’t we be conveying to them just put it in an 

electronic form and you are more likely to be able to get through 

than if you had something in a physical form of a physical picture? 

Isn’t that the tactic then that people that would seek to break 

these laws and do these crimes take? 

Mr. TIEN. I do not really think that is a major problem when you 

consider a couple of things. 

First, existing law protects international mail. That is actually 

the law that the Supreme Court pointed to in United States v. 

Ramsey, where they noted that you need reasonable suspicion 

under statute to open up an envelope and would need a warrant 

based on probable cause in order to read the correspondence in the 

envelope. That is why the Supreme Court in U.S. v. Ramsey did 

not touch the First Amendment issue. So we have already got laws 

on the books, for instance, that establish privacy for correspondence. 

Second, when we do this electronically, we have the protections 

under the Wiretap Act that control whether or not those kinds of 

communications can be searched. 

So I do not really see that—from a transparency perspective that 

we are really telling folks anything more about the privacy interests or about the possibility of evading detection through protecting 

laptops and BlackBerries and iPhones any differently. 

I also wanted to respond to one of your earlier points, Senator, 

about quantity. I was not saying that quantity is the only reason 

to differentiate digital devices. There is also the fact that the nature and the question of information on those devices is, it seems 

to me, much more personal because of the nature of the way that 

these devices have really embedded themselves into both our personal lives and our work lives. And what that ends up meaning is 

that your devices are like carrying a giant autobiography of the 

person in a way that is very different from most physical conveyances, and that creates what I call a scope of search problem. 

The purpose of or the function of a legal standard like reasonable 

suspicion or probable cause is not merely to establish the threshold 

reason for being able to perform a search. It also establishes the 

standard for the scope. How far can the search go? If you have 

probable cause to search something, then that also entails how 

much of something you can search. Because once you go past the 

amount that the suspicion or the cause, then you have gone too far. 

25 

The Fourth Amendment was intended to prevent general searches 

and general warrants, things without particularity. And so the idea 

of having— 

Senator BROWNBACK. I think I got the point here from you. I just 

do really question if we are not conveying a signal to people then 

that here is the way you get these in and you have a heightened 

protection at the border rather than another. And I still, though, 

have real trouble with the idea of people do bring these devices, I 

use them and bring them across the border because I hope to be 

able to use them when I am traveling. So I do think we have a real 

question to wrestle with. 

Thanks, Chairman. 

Chairman FEINGOLD. First let me compliment the Ranking Member for the balance and quality of his questions, and I just want 

to review the question that was asked of Professor Sales. 

Senator Brownback specifically said he did not like the idea of 

his BlackBerry being unloaded at the border, and he asked specifically if he waived his right to do that. You gave a scholarly answer, 

and I heard every word of it. But the answer can only be, based 

on your words, yes, Senator Brownback has waived his rights. 

Mr. SALES. Senator, I would not take credit for that myself. I 

would say those are the Supreme Court’s words. 

Chairman FEINGOLD. Fine, but I just want everyone to know that 

is the whole core of why we are having this hearing. Senator 

Brownback’s rights to privacy of his BlackBerry are waived completely at the border, according to your interpretation of the Supreme Court. And I think that is something we have to examine. 

Mr. SALES. If I could, Senator? 

Chairman FEINGOLD. Yes, sir. 

Mr. SALES. Thank you, Mr. Chairman. There is no question that 

when crossing the border, a U.S. citizen retains his Fourth Amendment right against unreasonable searches and seizures. The Fourth 

Amendment applies at the border. The border is not a Fourth 

Amendment-free zone. 

The question then becomes what kind of search counts as reasonable, and the Supreme Court has held for a number of decades that 

a routine border search can take place with no reasonable suspicion 

whatsoever. 

So the answer to your question, I believe, is the Supreme Court 

has said ‘‘yes, but.’’ 

Chairman FEINGOLD. Yes, but the ‘‘but’’ does not you any good 

because it is a ‘‘routine’’ search so everything is open. Now I am 

going to turn to Senator Durbin for his round. 

Senator DURBIN. Thank you, Mr. Chairman, for this hearing. 

About 10 years ago, the NBC television station in Chicago received a complaint from a woman who said she was traveling routinely through Chicago O’Hare, was stopped and strip searched, 

and she thought it was outrageous. She was African-American. The 

story ran on the air, and as a result of that story, a number of 

other African-American women who had gone through the same experience called the station. The woman who handled the story decided to make a plea that all of the African-American women who 

had been strip searched at Chicago O’Hare should contact the station, and it ended up with I think close to 20 when it was over. 

26 

It turned out that the U.S. Customs Service had established a 

practice at Chicago O’Hare that if you were an African-American 

coming from certain countries in the Caribbean, that they were 

going to stop more of them, detain them, and search them. Clearly, 

this was a case of profiling, and the complaint was made and an 

investigation initiated. The GAO investigation that I requested 

found there was a clear pattern of profiling against African-American women. You can understand the personal outrage of these 

women who were traveling, under innocent circumstances, who 

were being singled out. 

As a result, Ray Kelly, who was then head of the Customs Service, announced that that would end, and I commended him for 

doing the right thing. 

Now I am hearing complaints from particularly my PakistaniAmerican friends, but others, Arab, Muslim friends, that they are 

being singled out, and some of them with great embarrassment, 

men and women, are being stopped not for a strip search but for 

lengthy interrogation and for searching of their belongings. Many 

of them are reputable business people who have been established 

in the Chicago community for 10, 20 years, who have businesses 

with many employees. And travel has become an opportunity for 

harassment. And I understand the line of this questioning when it 

relates to laptops, but I also want to go to the larger issue of 

profiling and elicit some comments from you relative to that. 

Ms. Khera, does the DHS policy allow for Arab and Muslim 

Americans to be singled out for scrutiny on the basis of their national origin or religion? 

Ms. KHERA. Senator Durbin, you raise an excellent question and 

let me also first say—just thank you for your leadership on this 

issue. I know back 10 years ago when these issues arose involving 

the U.S. Customs Service, you led the fight here in Congress in trying to hold the U.S. Customs Service, the predecessor to the CBP, 

accountable at that time. So thank you for your continued interest 

in these issues. 

We believe that the current DHS guidance on this issue is not 

sufficient, that it does allow basically an escape hatch at the borders for DHS to use race, ethnicity. And what we heard this morning—in fact, I am very pleased to hear—is that there seems to be 

unanimity on this panel that singling Americans out based on their 

faith, ethnicity, is wrong and it is impermissible. 

I think two things. One is I think it behooves Congress to make 

it clear that that is the case, because clearly lessons were not 

learned from the experience of 10 years ago, and I think we do 

need some very direct authority on this. And I know Senator Feingold has a bill on this issue, the End Racial Profiling Act. You have 

been also a strong supporter of that, and I think it behooves Congress to move on that legislation. 

I think the second issue that this raises is even if in policy folks 

can agree that people should not be targeted, what is happening in 

practice, and are CBP agents receiving the kind of training they 

need and the proper guidance to ensure that they are not targeting 

people and not asking inappropriate questions. 

And, finally, I would encourage Congress to conduct oversight, to 

be demanding of CBP the policy and guidance that is being given 

27 

to these agents, as well as having CBP provide Congress with information about the basis for why people are being subjected to secondary inspection, the kinds of questions that are being asked, and 

items that are seized, and if information is being seized, how it is 

being used, how is it being stored and shared. 

Senator DURBIN. In this age of concern about security and terrorism, is it possible or even realistic to say that when it comes to 

these border situations, our Government cannot use race, religion, 

or ethnic background as the basis for searches or questioning? 

Ms. KHERA. I think it is absolutely necessary for our Government 

to be clear that we are not targeting people based on those factors. 

I think those factors can be used in combination with other factors 

indicating some kind of criminal activity. So if there is, for example, a specific description of a suspect, a criminal suspect, or a specific terrorist who might be crossing the border, those factors can 

then be used. But as a general matter, it is not smart border policy. 

It is not fair as a matter of the Constitution, and it is not effective, 

because with the limited scarce resources, as even my colleague 

Mr. Carafano pointed out, CBP has scarce resources, and we need 

to be sure that CBP agents are using those scarce resources in an 

effective way and not targeting the family man who is returning 

home from a business trip to Japan with very invasive, intensive 

scrutiny. Because for every minute that is spent on targeting him, 

it is 1 minute less that CBP could be focusing on actual wrongdoers. 

Senator DURBIN. Almost 4 years ago to the day, I asked thenDHS Secretary Tom Ridge in this Committee room about the special registration program, and he said at the time that he was 

going to modify or eliminate the program. Well, that has not happened in the 4 years since. 

I would just ask this kind of general question to all the witnesses. Mr. Carafano, you testified that, ‘‘In order to be successful, 

CBP must avoid predictable patterns of behavior.’’ This is the fundamental problem I see with profiling based on race, national origin, and religion. It is predictable, and terrorists and others seeking to do us harm can evade the profile once they learn about it. 

So is there anyone here who disagrees with the premise that 

profiling on the basis of race, national origin, or religion may actually be counterproductive? Is there anyone who disagrees with that 

concept? Remarkable unanimity. I appreciate that very much. 

Chairman FEINGOLD. Let the record reflect that no one disagreed. 

Senator DURBIN. I would like to ask; is profiling worse at some 

airports in America than others? Testimony received today mentioned several instances in the San Francisco airport, and I wondered, obviously, if there had been any incidents at O’Hare or other 

airports. 

Ms. KHERA. Senator, the complaints that we have received and 

other civil rights organizations have received have come from a 

number of different airports and land crossings. That includes San 

Francisco, Seattle, Newark, Houston, Boston, as well as land crossing in Detroit and the Washington State-Canadian border. So it 

has been a variety of different locations. 

Senator DURBIN. So it is not one particular airport. It is many. 

28 

Ms. KHERA. Yes. 

Senator DURBIN. Thank you very much, Mr. Chairman. I appreciate it. 

Chairman FEINGOLD. Thank you, Senator Durbin. I will begin 

another round. 

Professor Swire, DHS’s written testimony asserts that CBP border searches have helped to identify terrorists attempting to enter 

the United States. The testimony does not mention whether or not 

these laptop searches could have proceeded even if a reasonable 

suspicion standard were in place. In the few specific examples that 

are mentioned, it seems abundantly clear that reasonable suspicion 

was present, and so a reasonable suspicion requirement would 

have not interfered with apprehending these individuals. 

The same is true of Zacarias Moussaoui, whom Professor Sales 

mentioned in his testimony. In Moussaoui’s case, an FBI agent determined that there was a 50-percent probability his computer contained evidence of criminal activity. Although this was considered 

insufficient for probable cause, it surely was enough for reasonable 

suspicion. 

Do you think requiring a reasonable suspicion threshold for electronic searches will result in terrorists slipping through our fingers? 

Mr. SWIRE. Mr. Chairman, I think the reasonable suspicion 

threshold is a sensible and traditional legal way to go here. Maybe 

I can just briefly make a response to Senator Brownback, who 

asked earlier whether there is any distinction we can make between digital cameras and digital laptops and the rest. 

I think there is an important distinction that was not highlighted 

yet, which is that with digital things you do not just get a border 

search; you get a permanent search, that there is a record kept and 

a searchable data base created. And that does not happen with a 

suitcase, but it happens with these digital things. So the permanent search and the ability then to move it around the information—sharing environment makes all of these searches very different from traditional other searches. It is an additional clear 

legal reason to have a suspicion before these searches happen. 

Chairman FEINGOLD. Did you want to respond to the part of my 

question about reasonable suspicion? 

Mr. SWIRE. Reasonable suspicion. So I think in answer to your 

question, my reading of the cases is that the examples pulled out 

about terrorism involve reasonable suspicion. And I have not quibbled with and I believe in your opening statement you made mention that reasonable suspicion is an acceptable basis for searches 

at the border. It is random or suspicionless searches that the business travelers and the rest of us have very severe concerns about, 

and it is the one—suspicionless searches are the ones that pose the 

biggest computer security and general infrastructure risks. 

Chairman FEINGOLD. On that point, Ms. Khera, we have heard 

testimony from Ms. Gurley about the practical harms of subjecting 

business travelers to laptop searches, including the increased cost 

to companies and loss of competitive edge for our country. What is 

the harm that we suffer as a nation when Americans are singled 

out for intrusive searches and questioning because they are Muslim 

or because they are of Arab or South Asian descent? 

29 

Ms. KHERA. Mr. Chairman, first let me make it clear that I think 

all Americans, including Muslim-Americans, certainly are willing 

to put up with some inconvenience to ensure that our country is 

safe and secure. And I think what we are talking about is not just 

mere interference but some activities questioning searches that actually go beyond and really in some cases result in hours of being 

detained and being interrogated, and we have at least one case 

where the actual property, the cell phone was actually returned in 

a damaged and inoperable condition. So there is some very specific 

harm to individuals. And I would say in terms of more broadly 

speaking, in terms of your question about the harm to our country, 

I think fundamentally this is an issue of is this an effective—are 

these effective tactics? And is the broad power of the CBP being 

used to actually focus on the bad guys? Or are they really, you 

know, following the leads, following the actual evidence, facts indicating criminal activity? Because, again, we have scarce resources, 

and in order to be safe and secure, we need our resources being 

used in a targeted way going after the bad guys. 

Chairman FEINGOLD. Thank you. 

Professor Swire, if we assume, just for the sake of argument, 

that the Government has always had the right to read any document that citizens carry with them across the border, travelers in 

the past could avoid that situation by choosing not to take sensitive 

documents with them on their travels. Now, is that a practical option for most traveling Americans—to just leave their laptops at 

home or delete any private information before traveling? 

Mr. SWIRE. It does not seem a very good option, and they impose 

costs on travelers if they have to get a second laptop or get a second BlackBerry or whatever. 

Something that Dr. Carafano said earlier is that the border people will be limited by resources so they will not copy very much, 

they will not do this very much. But the cost to copying and storing 

data is going down to close to zero. We have technology to just 

make it a routine thing to copy at the border, and part of the reason to have this hearing now is before we get to that point, we 

should have procedures in place. 

Chairman FEINGOLD. Ms. Gurley, Mr. Cunningham testified that 

American citizens have no reasonable expectation of privacy in the 

contents of their laptops at the border because the country from 

which they have traveled may have searched the laptops as well. 

He states, ‘‘I submit that many countries conduct much more aggressive searches than the United States.’’ 

Is that consistent with what the members of your organization 

have experienced in their business travel? Do other countries examine the contents of laptops without individualized suspicion? 

Ms. GURLEY. I believe that Canada has similar regulations to us, 

but I assume that countries like Uzbekistan, North Korea, and 

other countries search your laptops, but I do not think that should 

be our benchmark. 

Chairman FEINGOLD. Thank you. 

Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Dr. Carafano, you said in your written testimony that there are 

numerous instances where we have gathered crucial information 

30 

from terrorists’ laptops. Could you give us a couple of examples of 

where that has happened? 

Mr. CARAFANO. Absolutely, Senator. I would just like, if I may for 

the record, Professor Swire said that I was talking about costs on 

the border. I was primarily referring to costs of individuals and the 

time of the individual agents at the border. I was not talking about 

the cost of, you know, taking and storing data. 

Senator BROWNBACK. With costs at the border for as far as that 

there is the time of inspection of the people? 

Mr. CARAFANO. That is absolutely the most critical element because there are two costs there. There is, one, the cost of the agent. 

You are taking—you are occupying the time of that agent and secondary inspection, focusing him on an individual. So that is the 

most—that agent is the most important in the line of defense at 

the border of making the determination of whether this person is 

a high-risk traveler, how much time should be spent with them, 

you know, how much of a risk do they actually—how much questions you need to ask, how much do you need to determine probable cause, because maybe you need to make a more intrusive inspection. So that is an incredibly valuable asset, and that is the 

real time we are concerned about. 

And the second— 

Senator BROWNBACK. Just on that, how many border crossings a 

year happen into the United States by U.S. citizens? 

Mr. CARAFANO. Millions. 

Senator BROWNBACK. Does anybody know the actual number? 

Mr. CARAFANO. Tens of millions. 

Senator BROWNBACK. I thought I had seen at one point in time 

that we had legal crossings a year into this country of over 200 million. Legal crossing into the country per year. 

Mr. CARAFANO. That may be if you want to count citizens or the 

number of times they actually cross the border. Some people in San 

Diego, for example, cross the border several times a day, and every 

one of those counts as a crossing. 

Senator BROWNBACK. I guess my point of that—and I do not 

know how many border agents we have that do that actual inspection. Does anybody know that actual number? 

Mr. CARAFANO. Well, it depends. For example, at L.A. Long 

Beach, there are about 1,500 CBP agents at the port of L.A. Long 

Beach, give or take, doing not just border inspections, not just inspecting people, but cargo and everything else. 

Senator BROWNBACK. It has been my experience that a lot of people cross these borders every day, and so what you are talking 

about is just a practical effect of agents looking, and that is your 

primary line of defense right there, is pretty limited about the 

amount of time that they have per person and decisionmaking that 

they have. 

Mr. CARAFANO. That is correct, Senator. And the other great concern we have is the travelers themselves. The more time they 

spend at the border, the higher the transaction costs of crossing 

that border for them and their company and the people that they 

serve. So you want to reduce those down to the minimum you possibly can, but you want to make sure that your security concerns 

are absolutely looked after. And so that is why you want to focus 

31 

those assets on the high-risk travelers. And you are going to use 

a range of resources to do that from intelligence gathering to sharing of information. And that is why these initial searches are an 

important part of that whole thing. 

I do think it is important that we make a distinction between an 

intrusive search, which does require probable cause, and what you 

would call a suspicionless search or inspection. You know, generally, even suspicionless searches and inspections are bad because 

they increase transaction costs. But that is not always the case. 

There is one category of suspicionless search or inspection that 

makes perfect sense, and that is a random inspection because, remember, what you are trying to do is just not speed travelers 

through, you are trying to identify bad guys. And part of catching 

the bad guy is making sure that they cannot identify the patterns 

of inspection that you are using. So randomness is an important 

component of that. 

For example, we have a Container Security Initiative. We inspect 

a percentage of high-risk cargo coming into the United States. But 

occasionally we will just pull off a container and just x-ray it for 

no other reason, just to try to make it more difficult for people to 

identify the pattern of characteristics that we are looking for to 

identify high-risk behaviors. 

So, again, to make that inspector at the border the most efficient 

and effective possible, we do have to be concerned about two things. 

One is we cannot make his trade craft so transparent that the terrorist or criminal can say, Oh, I will just do this and I will walk 

through. And the other thing is we have to give him the discretionary authority that he needs so he can focus his resources on the 

high-risk travelers. Again, the way we do that is to maximize the 

human capital investment we make in them so they are not doing 

racial profiling, maximize the technology they have available so 

they can get the information they need to identify high-risk travelers. But equally important is to provide them the flexibility they 

need in doing searches that are not intrusive, to be able to identify 

who are the people they should focus on. 

Senator BROWNBACK. Give me a couple of examples of what we 

have caught on terrorists’ laptops. 

Mr. CARAFANO. I think that is a great question because I think 

it is unquestionable that technology can be a formidable weapon. 

I mean, the most startling examples, of course, are not actually 

border-crossing incidents, but, for example, when we went into 

Pakistan and uncovered computers which had enormous data on al 

Qaeda operations. The computers and records that have been 

looked at, for example, in regards to A.Q. Khan and forensically 

what we have been able to determine about the terrorist network 

that they use for the movement of people and material is huge. So 

the fact that a technology like a computer can be a weapon and can 

contain an enormous amount of material that indicates malicious 

and criminal activity, I do not think that is disputable. 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Chairman FEINGOLD. Just a couple more questions from me. 

Mr. Tien, as you know, the Constitution prohibits searching an 

American citizen’s laptop within the borders of this country without probable cause and a warrant. If no limits are placed on cusVerDate Aug 31 2005 12:03 Nov 13, 2008 Jkt 045091 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45091.TXT SJUD1 PsN: CMORC
32 

toms officials’ ability to search laptops at the border, what is to 

stop law enforcement agencies from staging an end run around the 

constitutional requirement of a warrant by requesting that customs 

officials perform the search the next time that individual attempts 

to travel overseas? 

Mr. TIEN. I am afraid that there is not any current limit on that, 

and we have actually seen cases in which it appears that individuals are searched when they come back from international travel 

because there is some sort of vague red flag alert in the data base 

that says ‘‘put this person into secondary screening and then 

search.’’ The cases are not always clear on the actual reason why 

that flag was in there. It is just, ‘‘pull this guy over.’’ 

So we are very concerned that this problem of suspicionless 

searches does not require that everyone be searched. It can simply 

be that the Government is abusing its authority to pick out people 

based on factors that would not support probable cause in the 

United States. 

Chairman FEINGOLD. Thank you. 

Professor Swire, I was struck by your comparison to the 

encryption wars of the 1990s, which I found quite apt. One particularly compelling point you made was the ultimate futility of antiencryption rules in achieving the intended goal of preventing the 

use of strong encryption. You drew a comparison to laptop 

searches, stating that ‘‘moderately smart criminals and terrorists’’ 

would be able to avoid having electronic information captured 

through border searches. 

Can you elaborate on why you do not think laptop searches will 

be particularly helpful in apprehending competent criminals and 

terrorists? 

Mr. SWIRE. Thank you, Mr. Chairman. If we assume moderate 

intelligence and the ability to do searches on the Internet for today’s hearing transcript, the first thing that you do if you are trying to avoid the border is you do not carry things in your laptop. 

You can load your files in heavily encrypted form up to a server, 

and then when you get to the far side, you download it from the 

server, and there is never anything in your laptop when you cross 

the border. 

The second trick is using TrueCrypt or other software that is 

easily available today in the public market, widely used. And what 

you do then is you take your laptop, and when the agent says, 

‘‘Open it up and give us your password,’’ you open it up, but there 

is a second layer of encryption so the directory does not show the 

hidden part of your hard drive that has the other things hidden in 

there. 

That does require you to lie to the Border Patrol officer, so the 

Border Patrol officer says, ‘‘You can see everything here? ’’ And you 

say, ‘‘Oh, yes, sir, it does.’’ But at a technological level, the Border 

Patrol agent has gotten in partway to your computer but cannot 

get the rest of the way in. So that is two ways through that are 

widely known today. 

Chairman FEINGOLD. Senator Brownback, did you want to followup? 

[No response.] 

33 

Chairman FEINGOLD. First let me thank Senator Brownback for 

his very— 

Ms. KHERA. Mr. Chairman, do you mind if I— 

Chairman FEINGOLD. Very briefly, please. 

Ms. KHERA. Just a brief comment, because in Dr. Carafano’s last 

statement, he was mentioned Pakistan and laptops that have been 

found in possession of al Qaeda with various material. And I think 

it is just worth clarifying that the community has been concerned 

that the DHS is using the factor of which country people have traveled to as a potential basis for singling out people, and I just wanted to clarify that the kinds of stories we hear around the Muslim 

community do not seem tailored to the issue of trying to determine 

whether there is somebody who has been mingling with al Qaeda 

in Pakistan and potentially carrying laptops. You hear questions 

about the political views, Presidential candidates, how often they 

pray, their associations with people in the United States, and it 

seems to be tied not to criminal activity but instead some part of 

some broader intelligence-gathering exercise. So I just wanted to 

clarify. 

Chairman FEINGOLD. Fair enough, and as luck would have it, or 

I guess the world we live in, I am trying to get to a Foreign Relations hearing on Pakistan right now. So I want to thank all the 

witnesses for their testimony. I think it is extremely important to 

start giving close examination to this issue because we are to some 

degree in uncharted legal territory. I appreciate Senator 

Brownback’s active and valuable participation in the hearing. 

As I mentioned at the beginning of the hearing, neither the 

Framers of the Fourth Amendment nor the Supreme Court when 

it crafted a broad border search exception could have conceived of 

a world in which Americans crossed over the border dozens of 

times each year, carrying with them virtually all of their personal 

information. It is time for the law to catch up with reality. This 

hearing has shed some light on what that reality is and how ordinary law-abiding Americans are affected when the Government 

claims an unlimited right to search their laptops. 

There is room for common sense here. I suspect everyone in this 

room who is learning about these searches for the first time had 

a visceral reaction to the idea of the Government reading through 

the contents of their laptops, browsing their e-mails, and looking 

to see what websites they have visited. That reaction, I am guessing, was very different from the reaction they would have if asked 

to open their suitcase. In my opinion, these different reactions demonstrate the need for different policies. 

I also think this issue has to be placed in the larger context of 

this administration’s ongoing assault on Americans’ privacy. There 

was a statement in Mr. Cunningham’s written testimony that I 

found breathtaking. He said, ‘‘Given the possibility of surveillance 

of phones and the Internet, ‘old-fashioned’ smuggling across the 

border, by storing files on a laptop, might prove a safer and more 

attractive alternative for [terrorist] communication provided the 

persons doing so could be assured that the computer would not be 

subject to the possibility of random and suspicionless search.’’ The 

implication is that the way to stop terrorists is to ensure total GovVerDate Aug 31 2005 12:03 Nov 13, 2008 Jkt 045091 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45091.TXT SJUD1 PsN: CMORC
34 

ernment surveillance authority over every person at every point, 

both inside our borders and out. 

That is certainly one way we can respond to the threat we face 

from terrorism. We can become a surveillance state. But I remain 

convinced that a better approach is to remain true to our core values as a Nation. I do not think that suspicionless searches of Americans’ laptops at the border or anywhere else are consistent with 

those values, nor do I think they are an effective means of fighting 

terrorism. 

Many of the witnesses today had ideas for solutions that would 

bring border searches back in line with our values and our constitutional principles. I will be taking a close look at these ideas 

in the weeks ahead. Because of the upcoming holiday recess, the 

hearing record will remain open for 2 weeks for additional materials and written questions for the witnesses to be submitted. 

As usual— 

Senator BROWNBACK. Mr. Chairman, I want to make a closing 

comment. 

Chairman FEINGOLD. OK. Why don’t you go ahead and then I 

will finish. 

Senator BROWNBACK. Mr. Chairman, I was not going to make a 

closing comment, but with yours, I think it is appropriate as well 

to also draw some balance on this. I think this is a good topic for 

us to discuss. It is an important one. I think you also get a little 

stretching on the administration’s—they are just trying to search 

everybody. I think you have got a very practical concern here that 

we are trying to protect, the people are trying to protect the country, and that you have got hundreds of millions of crossings a year. 

You have people attempting to come into the country or from the 

country to do us harm, and you have got a real security need that 

is here. I think you have a court that has responded to this, that 

it has addressed some of the issues right at the border and your 

standards of review that exist at that border. 

I would hope people would look at that in a balanced sense and 

would say, OK, we do have legitimate—there are legitimate security needs, standards at the border have been established by the 

courts, and we need to see some practical implementation of that 

where you have hundreds of millions of people crossing the border. 

I cross the border on not an infrequent—a couple of times a year, 

and I think we can be sensible about that without just the hyperbole of blaming an administration that wants to have a surveillance state. They do not want to have a surveillance state. Nobody 

wants to have that. Nobody wants to stand for that. But we do 

want to try to keep the American people safe. And it is just a very 

practical thing that I hope we could work on a practical basis, protecting those constitutional rights, recognizing the difference that 

the Court has articulated at the border, and try to work that on 

forward. 

Thank you, Mr. Chairman. 

Chairman FEINGOLD. Let me simply conclude by saying I wish 

that what I said about the administration was extreme. But it is 

not. This administration for years has created an environment, 

whether it be the Inspector General’s reports about the detentions 

of Muslim-Americans and others right after 9/11 or any number of 

35 

other practices—you name it. They have created this environment 

where, frankly, people might believe a level of surveillance and activity that is even beyond reality. We are going to have a new administration, whether it is Republican or Democrat, but the historical record is clear that this administration has been reckless with 

regard to the privacy of the American people. And I realize we disagree on that, and this was not the focus of the hearing, but I believe that if we are going to fix all this, we need to have a different 

environment with regard to the next administration. I am hoping 

we get that. 

As usual, we will ask the witnesses to respond promptly to any 

written questions so that the record of the hearing can be completed. Thank you. 

This hearing is adjourned. 

[Whereupon, at 10:49 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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