The Right to Travel

  In our November 28 issue, we explored one new limitation on Americans' right to travel freely, what we called the "ultimate no-fly list." But there are a couple of other surveillance items about which travelers should know.

Do you own a laptop computer? Do you routinely travel with it?

If so, you might want to consider taking a few precautions, because evidence is mounting that federal officials are legally (and, so they say, "randomly") opening a growing number of laptops owned by passengers returning to the U.S. And perusing their contents.

The vast majority of travelers don't realize that customs agents have the legal authority to do this. Computers may also be seized and held indefinitely, without the agents having to obtain probable cause that a crime has been committed. Victims of seizures have no right to know why they've been targeted.

While you may be unaware that this has been going on, the Association of Corporate Travel Executives is not. The ACTE, an international trade group representing corporate travel managers, is concerned about the potential loss of proprietary information, and Susan Gurley, its executive director, wrote the Department of Homeland Security (DHS) in early November, in an attempt to clarify policy.

"Are copies made of the information?" Gurley asked. "What safeguards do you have in place? Is the information downloaded and/or mirrored and stored somewhere, and if yes, for how long? Who has access to it?"

As of now, we don't believe the DHS has yet responded, but if laptop guidelines are similar to those for ATS, detailed below, we doubt we'll like the answers.

New York Times writer Joe Sharkey published one instance of seizure that could have happened to most anyone, quoting a correspondent who wrote him that "as he returned from a business trip to Europe, his laptop was seized in what he said he was told was a random search.

"'After giving me and my shoes a thorough search, they moved on to my laptop,' he wrote. 'On the desktop I had a folder named "Blueprints" which contained, as labeled, blueprints for several potential designs for our company's expansion in Madrid and Houston.'

"He added, 'My laptop was initially searched by one person, but he called for backup,' when he saw the blueprints. 'It seemed they were convinced I was sent to plant bombs in those nonexistent buildings.' He said he hasn't seen the laptop since."

How to protect yourself? Eddie Baron, a professor at the University of Oklahoma, suggests storing your data files on a flash drive and packing it in your checked luggage.

Sharkey quotes Jack Riepe, a spokesman for the ACTE, who has another alternative: "I got a file on my desktop called 'Terrorist Notes.' I'm keeping notes on writing a thriller, but maybe I should change the file to 'Grandma's Favorite Cookie Recipes'." That might help, unless they Google Riepe and find that he once wrote a book entitled, Politically Correct Cigar Smoking for Social Terrorists. Then he can kiss his computer good-bye.

Ultimate no-fly lists, laptop seizures. What else is in the works?

The next level of "security" the DHS has on tap for us will employ a sophisticated program called the Automated Targeting System (ATS)--originally designed simply to track cargo--that's linked to a massive database containing detailed information on countless millions of Americans and others.

The database has been silently filling up for the past four years. In the process, it's been generating "scores" that rate the risk the traveler is a criminal or terrorist. Currently, it's estimated to contain over 5 billion records and in 2003, according to the Transportation Research Board, it was consulted 766 million times with regard to 475 million travelers.

The DHS says risk profiles will be maintained for 40 years, "the potentially active lifespan of individuals associated with terrorism or other criminal activities." If that sounds reasonable to you, consider that the database is not confined to known terrorists or criminals.

Anyone who travels may be in there and, according to the DHS, ATS is aimed at ferreting out high-risk individuals who "may not have been previously associated with a law enforcement action or otherwise be noted as a person of concern to law enforcement." Beyond that, DHS asserts, "the risk assessment for individuals who are deemed low risk will be relevant if their risk profile changes in the future."

Who gets to decide when or if that has happened? They do. And what are their criteria for making the call? They're not saying. Can you challenge or even see your risk profile? No.

Amid all this secrecy, what we do know is that a traveler's profile is stunningly detailed, containing, in the government's own words, "every possible type of information from a variety of federal, state and local sources." That would include such obvious things as criminal records, and phone and Social Security numbers, but also where you came from, where you've been, how you paid for your ticket, your motor vehicle records, credit card info, any past one-way travel, your seat preferences, and what kind of meals you tend to order.

David Sobel, a lawyer with the Electronic Frontier Foundation, calls it "probably the most invasive system the government has yet deployed in terms of the number of people affected."

But the information is secure, right? Hardly.

The Federal Register notice revealed that some or all ATS data may be shared with state, local and foreign governments for use in hiring decisions and in granting licenses, security clearances, contracts and other situations. In some cases, the data may be given to courts, Congress or even private contractors.

As Stephen Yale-Loehr, of the Cornell Law School, tersely put it: "Everybody else can see it, but you can't."

DHS spokesman Jarrod Agen confirmed that, "We have the authority and the ability to do [risk assessments] for passengers coming by land and sea," but added that the department has not as yet been conducting assessments on travelers at land crossings.

But that, he says, is for logistical reasons. Given government's proclivity for expanding into all possible niches, we suspect that any contrary logistics will soon be overcome.

If you are hit with unexplained supplementary searches or interviews, can you squawk about it? Yes, at least for now. You may ask to speak to a supervisor, and you may file a complaint with the Custom and Border Protection's Customer Satisfaction Unit.

And with that, we wish you good luck.

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Posted 12-26-2006 5:19 PM by DougHornig