Travel Security Abuses and Intrusion Show Need for Stronger Consumer Protection

May 9, 2008

By Gary Arlen, TechContrarian

As the summer travel nightmare gets underway, Congress is being asked to look into - but is unlikely to deal with - several pressing matters that could make flying tolerable, if never again pleasant. The inscrutable if not downright abusiveness of the Transportation Security Administration and Customs and Border Protection (CBP) is just the tip of this iceberg. Both agencies are part of the Department of Homeland Security - which is trying to do a job, but increasingly flying in the face of the Constitution.

Among the latest travel fiascos is a ruling by the Ninth Circuit Appeals Court that upheld CBP's authority to conduct searches into computers, digital cameras, mobile phones, smart phones (like the Blackberry), even USB "thumb drives" and other paraphernalia. Aside from the meaningless inconvenience, for business travelers this may mean exposing sensitive corporate/trade secrets - or even private financial documents or business contracts - into an open environment where competitors could find them.

Early this month, more than two dozen privacy and civil rights groups - an odd amalgam ranging from the American Civil Liberties Union to the Republican Liberty Caucus - asked the House Committee on Homeland Security to investigate these CBP incursions. Led by the Electronic Frontier Foundation
www.eff.org/cases/foia-litigation-border-searches and the Association of Corporate Travel Executives (ACTE) - another pair of strange bedfellows - the group wants Congress to ascertain a rationale for Customs agents to go through the contents of laptop without offering an explanation.

The Department of Homeland Security's "explainers" fall back on their usual excuses: these routine inspections prevent terrorists and their weapons from entering the U.S. But aside from the insult and inconvenience to American travelers - business people as well as leisure travelers toting an electronic gizmo - such explanations demonstrate DHS' invasive mentality. The process contravenes individual rights, not to mention the "unreasonable search and seizure" precepts of the Constitution.

CBP has never published guidelines about how it inspects, retains or returns the data or equipment that it grabs. Although there is no clear information about how many travelers have been affected, the perception is that some unspoken profiling process is in play here. That means that ethnic travelers - of whom there are many in the financial and technology sectors most seriously affected - may be especially susceptible to such abuses.

The problem is so threatening that ACTE - the travel executives' lobbying group - advises professionals not to carry proprietary business information, especially if they are travelling internationally where CBP agents could poke into it.

Congress - if it acts at all on travel chaos - will go after the more visible issues of flight delays, airline mergers and passengers inconvenienced by sitting on the tarmac for hours. Yet intrusive inspections and invasive property examinations represent a deeper threat to American principles.

There are vast implications to the entire airport and border security situation. The technology issues add to the complexity, and they also underscore the fundamental issue at stake: constitutional rights at risk.

That should be atop Congress' objective in fixing the travel mess.

Gary Arlen, editor of Technology Today, focuses on the convergence of telecommunications, media and technology policy. He heads a research/analysis firm near Washington, D.C., and teaches telecom industry structure at George Mason University