By Robert McGarvey
The ACLU has now filed suit against TSA, claiming that agents are searching the devices of domestic travelers.
“Domestic” is the key word. For some years, the US government – along with many foreign governments – has searched devices owned by international travelers. That’s handled by US Customs and Border Patrol agents and, in 2017, searches were in fact up 60% from 2016.
But the total number of searches in 2017 hit only 30,200. Customs, by the way, has a clear right to search such devices – only diplomats are excepted – and it can search people arriving or departing, US citizens as well as foreign nationals.
About 80% of searches are on devices of non US citizens.
And, really, not many people are searched. 0.0007 of international travelers in 2017.
Domestic travel searches of devices is an entirely different matter.
And I know many very senior executives who sometimes travel with highly confidential documents – pertaining to merger and acquisition targets, for example – who would freak out if they feared their documents might have been scanned in a TSA search. And maybe they could have been.
There’s a lot we just don’t know about domestic data searches.
For what it’s worth, TSA denies it conducts searches: “TSA does not search the contents of electronic devices,” a TSA executive told The Guardian.
ACLU has a different perspective. “We’ve received reports of passengers on purely domestic flights having their phones and laptops searched, and the takeaway is that TSA has been taking these items from people without providing any reason why,” staff attorney Vasudha Talla told the Guardian.
One fact: I personally don’t give much of a hoot if TSA wants to search my devices. Not personally. But I do care a great deal if civil liberties are trampled upon and, per the ACLU, that’s exactly what is occuring.
The ACLU staff lawyer, in a press statement, elaborated: “TSA is searching the electronic devices of domestic passengers, but without offering any reason for the search,” said Talla. “We don’t know why the government is singling out some passengers, and we don’t know what exactly TSA is searching on the devices. Our phones and laptops contain very personal information, and the federal government should not be digging through our digital data without a warrant.”
As far back as July 2017, TSA in fact did issue some details in a press statement:“As new procedures are phased in, TSA officers will begin to ask travelers to remove electronics larger than a cell phone from their carry-on bags and place them in a bin with nothing on top or below, similar to how laptops have been screened for years. This simple step helps TSA officers obtain a clearer X-ray image.”
Notice the phrase: “similar to how laptops have been screened for years.” I recall the days when , occasionally, TSA would ask a traveler to remove a laptop from a bag and boot it up. I recall sidelining a computer with a bad battery because it couldn’t reliably perform that chore. I doubtless grumbled…but it didn’t bother me particularly.
What about today? And the apparent entry of TSA into device data searches? The ACLU suit fingers the hottest button: “the federal government’s policies on searching electronic devices of domestic air passengers remains shrouded in secrecy.”
Thus the ACLU suit.
ACLU, by the way, said it had previously filed Freedom of Information Act demands for data from TSA but the agency had ignored those filings.
The US Customs and Border Protection has issued a detailed, 12 page report on its search of devices of international travelers. It’s extensive and if you have questions, probably the answers are in this January 2018 document.
TSA, by contrast, is opaque. Per the ACLU suit: “TSA has not made publicly available any policies or procedures governing searches of electronic devices, especially those held by passengers engaged in purely domestic air travel. As such, the public is unaware of the legal basis for TSA’s searches of electronic devices of passengers not presenting themselves at the border and flying on a domestic flight. Further, the public is unaware of TSA’s policies and procedures for advanced or forensic searches, in which external equipment is used to search, examine, or extract data from passengers’ electronic devices and SIM cards. And the public has no knowledge of TSA’s policies and procedures relating to seizure of electronic devices, retention or destruction of data resident on those devices, or use of the device to access data held on a ‘cloud’ or elsewhere.”
Question: if you have a confidential document, how can you shield it from TSA? I’m guessing if it resides in the cloud, not on the device, you might be good to go. But that’s just a guess.
There’s just a lot savvy business travelers need to know to keep organizational secrets safe – and right now we just don’t know all we need to know to make shrewd decisions. Maybe the ACLU suit will shed the light that’s needed.
At least we can hope.