Customs Brokers Would Get More Flexibility to Share Client Info under CBP Proposal

(World Trade Interactive)

Customs brokers would have more flexibility to share client information with other entities under a new proposal from U.S. Customs and Border Protection.

This proposed rule would allow brokers, with written consent from the client, to share client information with affiliated entities related to the broker so that they may offer non-customs business services to the broker’s clients. Brokers would also be allowed to use a third-party service provider to perform photocopying and scanning of client records, provided that the service provider enters into a non-disclosure agreement requiring it to keep confidential the contents and information contained in any records pertaining to the broker’s client.

Finally, brokers would be able to use a third-party messenger service for transporting and/or delivering client documents on the broker’s behalf if those documents are sealed so that the messenger cannot view, alter or amend them.

CBP states that these proposed changes are intended to codify its previously published rulings and to update its regulations to reflect modern business practices while protecting the confidentiality of client (importer) information. Comments on this proposal are due no later than Dec. 27.

Montreal Student Sues U.S. for Border Searches

(The Associated Press via CBC News)

Lawyers, photographers in lawsuit to stop searches without cause

Civil rights lawyers cited the case of a Montreal student Tuesday as they sued the U.S. government to try to stop authorities from examining the laptops, cellphones and cameras of international travellers without probable cause.

The lawsuit was filed in U.S. District Court in Brooklyn against the Department of Homeland Security, as well as U.S. customs and immigration authorities.

In May, a graduate student in Islamic studies at McGill University in Montreal was detained for several hours as his electronic devices were searched, the suit says. The encounter badly frightened the student, according to the suit. Read more here.

Related:
• ACLU files suit against suspicionless laptop searches at U.S. borders - Fierce Government
• Privacy watchdogs challenge laptop seizures at US orders‎ - Register
• Group sues Department of Homeland Security to stop laptop searches‎ - InfoWorld
• New lawsuit to challenge laptop searches at US border‎ - Washington Post

Getting Your Data Safely Across the Border

(Techworld)

Since the terrorist attack on the 9/11, the United States has sacrificed some freedoms and liberties in exchange for tighter security in an attempt to prevent future attacks. The ACLU has joined with other groups in filing a legal challenge to one such security measure that infringes on personal liberty--the practice of searching laptops without cause at border crossings. However, there are also other ways you can get your data across the border without having it accessed by the prying eyes of Big Brother.

Benjamin Franklin is given credit for saying “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety,” and many of the security measures that have been implemented in the wake of 9/11 violate this basic tenet. But, for some organizations that fall under HIPAA, SOX, GLBA, or other regulations, safeguarding data is not just a principle of personal freedom, but also a compliance mandate.

Check It: If you are traveling by air, you can get your laptop past the TSA (Transportation Security Administration) checkpoint and possibly CBP (Customs and Border Protection) agents by checking it with your luggage. Odds are fair that you wouldn't really use it on the flight anyway. Unless you're flying first class (and how many businesses still allow for expensing first class travel?), there is simply no room to work with a laptop. Whatever minor productivity might result is most likely not worth the effort and frustration. Read more here.

Judge Limits DHS Laptop Border Searches

(Declan McCullagh — CNET)

A federal judge has ruled that border agents cannot seize a traveler’s laptop, keep it locked up for months, and examine it for contraband files without a warrant half a year later.

U.S. District Judge Jeffrey White in the Northern District of California rejected the Obama administration’s argument that no warrant was necessary to look through the electronic files of an American citizen who was returning home from a trip to South Korea.

“The court concludes that June search required a warrant,” White ruled on June 2, referring to a search of Andrew Hanson’s computer that took place a year ago. Hanson arrived San Francisco International Airport in January 2009.

The Justice Department invoked a novel argument--which White dubbed “unpersuasive”--claiming that while Hanson was able to enter the country, his laptop remained in a kind of legal limbo where the Bill of Rights did not apply. (The Fourth Amendment generally requires a warrant for searches.)

“Until merchandise has cleared customs, it may not enter the United States,” assistant U.S. attorney Owen Martikan argued. “The laptop never cleared customs and was maintained in government custody until it was searched...” Read more here.

How to Request Importer Confidentiality when Importing via U.S. Ports

(CIFFA eBulletin)

CIFFA recently learned ‘how companies can request importer confidentiality’ from one of the tradeshow participants at the September FIATA World Congress in Geneva.

For goods arriving in the U.S.A. via marine ports, importer data and potentially confidential commercial information is taken from the manifest data and made public through reports such as the Piers Report. If Canadian cargo is FROB (Freight Remaining on Board), or in a container arriving in North America via a U.S. port, the Canadian commercial data is also publicly available through these reports. If Canadian importers wish to remain private there is a means to so – they can request importer confidentiality.

Importer names on entry documents are confidential and U.S. Customs and Border Protection (CBP) does not disclose names of importers to the public. The privacy statute, 19 CFR 103.31 (d), however, allows the media to collect manifest data at every U.S. port of entry. Reporters collect and publish names of importers from vessel manifest data unless an importer/shipper requests confidentiality.

Importers can request confidentiality for 2 years by writing the Privacy Branch, 799 Ninth St., N.W., Fifth Floor Mint Annex, Washington, DC 20229. After 2 years, the request can be renewed. U.S. CBP is working on an electronic method for submitting this request, but it is not high on the priority list for CBP.

American’s Computer, Hard Drives Seized

(Shawn Berry — CanadaEast News Service)

Judge not impressed by behaviour at border

Border guards are trying to determine what’s on a laptop computer seized from an American man who refused to give them access to encrypted information stored on the device.

Carl David Todaro, 38, of Clarks Summit, Pa., was arrested by a Canada Border Services Agency officer Wednesday afternoon after he tried to cross into Canada at the Houlton-Woodstock port of entry.

Todaro, who will be barred from re-entering Canada, appeared in provincial court Thursday afternoon and pleaded guilty to hindering a Canada Border Services Agency officer.

He was fined $1,000 and had his computer and two external hard drives seized for further inspection.

“The results of the examination will be turned over to U.S. authorities,’’ said federal Crown prosecutor David Hitchcock. Read more here.

A “Radical’ in Our Midst: Crossing Borders as Art

(Naj Wikoff — Lake Placid News)

Jerilea Zempel got a call from the Financial Times of Finland asking for information about her art. This was followed a day later by a call from the Colbert Report. They wanted to interview her. She knew something was up. She Googled herself to find scores of references to her being delayed for several hours by U.S. Customs as she attempted to return from installing one of her works of art, in this case the blanketing of a rented Hyundai Santa Fe with a form fitting crocheted white cozy at the Cultural Capital Festival in Sackville, New Brunswick.

The delay at the Houlton, Maine crossing irked her. She had a long, long drive home to Keene Valley. She had just finished two arduous weeks finishing and installing her art. She was tired. But more, the customs agents had gone through her laptop computer, her cell phone, her digital camera, her suitcases, her art materials, which included boxes of yarn, crochet tools and her sketchbook. It was invasive. It was creepy. Imagine complete strangers reading all your mail, diaries, checkbook statements and other records right in front of you and there is nothing you can do or say to stop them.

[snip]

“The border used to be open and friendly,” Zempel said. “People on both sides used to cross easily all the time. No more. I became aware of this a year ago returning to the U.S. on a bus from Toronto. They had us stand out in the cold for hours while they went through everyone’s baggage.” Read the complete article here.

Canada Backpedals on Sharing Personal Database With U.S.

(The Canadian Press)

Ottawa has quietly dropped plans to let the United States house a database of personal information about Canadians who hold special driver’s licences aimed at better securing the border.

The move follows vocal criticism from federal and provincial privacy commissioners, who warned earlier this year the scheme could open the door to abuse of the sensitive data.

However, the office of federal Privacy Commissioner Jennifer Stoddart is still wary of the plan to share information on so-called enhanced driver’s licences with the United States, and stresses the passport is still the ideal travel document for Canadians.

“All in all, we are pleased to see that they listened to some of our recommendations, but we remain hopeful that they’ll heed to many of our other concerns,” said Anne-Marie Hayden, a spokeswoman for Stoddart.

As of next June under Washington’s Western Hemisphere Travel Initiative, all people entering the U.S. must have a passport or other secure documentation confirming citizenship and identity. Read more here.

Privacy Group: US Border-Crossing Database Raises Concerns

(Grant Gross — IDG News Service/Networkworld)

A plan by U.S. Customs and Border Protection (CBP) to collect personal information on every traveler coming into the country and keep that information in a database for 15 years could have huge privacy implications for U.S. residents, one privacy group said.

The Center for Democracy and Technology (CDT), in comments filed Monday, said CBP's plan raises serious privacy concerns. CBP is part of the U.S. Department of Homeland Security.

The CBP proposal, published as a federal notice in late July, represents a “vast scope of data collection,” because data wasn't formerly kept for U.S. citizens crossing into the country by land, the CDT said.

In addition, the 15-year retention period for the data is “excessive,” wrote Gregory Nojeim, senior counsel at CDT. “It cannot be justified as necessary for determining whether the record subject is admissible or is dangerous or is the subject of an outstanding criminal warrant,” he wrote in the CDT filing.

The CBP plan also allows for the agency to share the information with other federal, state, local, tribal or foreign government agencies for a wide variety of reasons, Nojeim wrote. The CBP proposal allows information to be shared with government agencies responsible for investigating, prosecuting, enforcing or implementing a “statute, rule, regulation, order or license” when CBP believes that information would help the enforcement of civil or criminal laws or regulations.

In the past, CBP could only share information when it became aware of a violation or potential violation of laws or regulations, Nojeim noted. Read more.

Business Travelers, Beware the Customs Desk

(Wall Strreet Journal Blogs – Ben Worthen)

Business travelers coming into the U.S. need to be careful what information they keep on their computers.

A U.S. Appeals Court ruled recently that customs officials could search through the information stored on laptops and other devices without needing probable cause. The decision hinged on the judges’ conclusion that information stored in digital form counts as luggage–no different from the contents of a suitcase–and aren’t an extension of a travelers thoughts.

This means that execs returning from business meetings abroad could have their laptops–or the information contained on the machines–seized at the border. In a worst-case scenario, travelers could lose the use of their devices and sensitive information could be leaked by Customs and Border Protection employees. (An unlikely scenario, sure, but still worth thinking about.)

Lynn Hollinger, a Customs and Border Protection spokeswoman tells us that “It is not CBP’s intent to subject legitimate business travelers to undue scrutiny.” She says that Customs officers “have the responsibility to check items such as laptops and other personal electronic devices to ensure that any item brought into the country complies with applicable law and is not a threat to the American public,” and that “laptop computers and other personal electronic devices may be detained for violations of law including child pornography, intellectual property offenses, ties to terrorism, or other violations of law.”

Sounds reasonable. But Susan Gurley, executive director of the Association of Corporate Travel Executives, an advocacy group for the business-travel industry, tells us that the problem isn’t that Customs can now conduct these searches, but that Customs hasn’t made public its policies regarding how it handles the data it confiscates. For example, Gurley asks, how long will Customs keep a laptop? What happens to data once Customs is finished inspecting them? And how will Customs ensure that confidential information doesn’t leak out?

We tried for a week to get answers to those questions. The closest we came was an assurance from Hollinger that Customs and Border Protection handles all information as required by law.
Our pure-speculation translation: Customs is making this stuff up as it goes along.

In the meantime, Gurley suggests that travelers who are worried about having confidential information seized simply email it to themselves or store an encrypted version on the Web. And because Customs officers may want to inspect the contents of your computer, you may want to not bring it into the country in the first place. More here.

Customs Can Search all Files on a Laptop, U.S. Court Rules

(Sci-Tech Today)

The Ninth Circuit Court of Appeals has ruled that U.S. Customs and Border Patrol officers can open every file on a laptop without cause. The court said laptops arriving at international airports are subject to border rules. The lawyer for Michael Arnold had some creative arguments, but the court didn’t buy them.

Business travelers carrying laptops into the U.S. from overseas may be in for a rude experience. The Ninth Circuit Court of Appeals ruled Monday that U.S. Customs and Border Patrol officers can search laptops — including opening every file on the hard drive — without any reasonable suspicion.

The decision in United States v Arnold by a three-judge panel reverses a U.S. District Court decision that said such searches require reasonable suspicion.

The case concerns Michael Arnold, who arrived at Los Angeles International Airport from the Philippines and was pulled aside by customs agents for a random laptop Relevant Products/Services search. When the officers started up the computer they found two folders on the desktop labeled Kodak Pictures and Kodak Memories.

When they found photos of nude women in those folders, they spent several hours opening multiple files until they found images of child pornography. They seized the computer and two weeks later obtained a warrant. A grand jury charged Arnold with breaking federal child-pornography laws.

In its ruling, the Ninth Circuit held that international arrivals at U.S. airports are subject to the same rules as border crossings. Those rules give customs officials broad leeway to conduct searches of anything a traveler brings into the country. The international terminal of a U.S. airport is the “functional equivalent of a border,” the court said, citing the U.S. Supreme Court case of Almeida-Sanchez v. United States.

In arguments before the court, Arnold’s lawyer, Marilyn Bednarski, had a creative argument to get around the presumption that border searches are reasonable. Computers are “an extension of ourselves,” she told media outlets this week. “It really is like looking into someone’s mind, rather than looking into a box or a folder or a purse.”

In other words, Bednarski argued, laptops are actually an extension of our bodies. That argument is based on a Supreme Court holding that there is at least one limit to border officers’ ability to search at will. In a 1985 case, United States v. Montoya de Hernandez, the Supreme Court ruled that officers do need reasonable suspicion to search the alimentary canal because “the interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusion on the mere chance that desired evidence might be obtained.”

The appeals court didn’t buy that argument.

Bednarksi also argued that the laptop was the equivalent of one’s home, since it potentially contains digital versions of all the images and documents traditionally kept in the home. In another 1985 case, California v. Carney, the Supreme Court ruled that not even a mobile Relevant Products/Services home is accorded the same privacy interest as an actual home since it is “readily movable.” A laptop is even more movable than a mobile home, the court noted.

International travelers uncomfortable with having their laptops searched might want to consider storing files online and renting a laptop when they get to their destination country, or encrypting their files if they do travel with a laptop.

“It’s so easy to encrypt your files, passing through any spot where you are liable to be searched with sensitive data unencrypted seems brain-dead,” one person posted on a blog.