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Expanded Powers to Search Travelers at Border Detailed
But Marcia Hofmann, staff attorney for the Electronic Frontier Foundation, said that laptop computers may contain "a massive amount of private information such as personal e-mails, financial data or confidential business records" and that the government should not violate travelers' constitutional rights in the name of national security.
There is apparently wide interest among other government agencies in CBP's ability to collect information, according to a July 11, 2007, e-mail obtained by the groups. The e-mail originated from the agency's New York field office. "As we all know, CBP's data collection capabilities have been widely discussed in the law enforcement community and we have been asked by many various agencies to copy and transmit documentation being carried by travelers for legitimate law enforcement reasons," said the writer, whose name was redacted.
The Heidy decision barred customs officers from sharing information they suspected was seditious with other federal agencies unless the agencies abided by CBP's restrictions on data retention. But the July policy allows the agency to share data obtained at the border if there is suspicion that a law enforced by it is being violated.
Cole said the government's search authority at the border is very broad, "so it is important that it not be turned into a loophole by which other law enforcement agencies, which are not permitted to conduct searches without probable cause or reasonable suspicion, are able to avoid the constitutional limits on their authority."
Customs officers are trained to know under what circumstances sensitive law enforcement information may be shared and with whom, DHS spokesman Russ Knocke said.
Over the past several years, the Asian Law Caucus and other civil liberties groups have reported a surge in complaints from travelers who have been questioned about their religious practices and political leanings. Many of the travelers say they have had their laptops or phones searched.
Yasir Qadhi, a 33-year-old Houston native who studied in Saudi Arabia from 1995 to 2005 and is pursuing a doctorate in Islamic studies at Yale University, said he is questioned every time he reenters the United States. He said he is routinely asked which mosques he has prayed in, what charities he donates to, what lectures he has delivered, what the lectures are titled. If he has notes, he said, they are photocopied.
In March 2006, when driving home to New Haven, Conn., from Toronto, he said, he was detained with his wife and three children at the border for 5 1/2 hours. The agents, he said, asked about religion, and, noting his Saudi studies, asked him for classmates' names and whom he corresponded with in the United States.
They also detained his cellphone.
Then, this spring, an agent in the FBI's New Haven field office asked him to come by. Qadhi said the agent cited the March 2006 stop and said, "We went through your personal diary in your phone, and we discovered these numbers on there, and we want to know your relationship with these specific individuals."
Qadhi said: "And they went through each one of them."
Knocke said he could not comment on an individual case. He said customs officers do not racially profile in any way but have the authority to "take and consider evidence concerning the privilege" of any person to enter the United States.
Nathan A. Sales, former DHS deputy assistant secretary for policy development, said that "in some instances, you can imagine it would be appropriate to ask questions" such as those asked of Qadhi. "But when you do, you're playing with fire."
Sales, a George Mason University law professor, said: "If you want to ask questions about a person's churchgoing or charitable contributions, you need to take steps to ensure it doesn't stray from legitimate questions to harassment. You need to have a clearly established policy that these sorts of questions are only asked in certain circumstances, and only when we have some indication to believe that a particular mosque or a particular charity might have some sort of terrorist tie."
Qadhi said he feels "frustrated" by a system that he thinks will never tell him what list he is on so that he can get off it. "I'm treated like a second-class citizen, and there's absolutely nothing I can do," he said. "This is simply not the America I grew up in."
Staff researcher Julie Tate contributed to this report.