Monday, August 11, 2008

Department of Homeland Security Wants Your Laptop Info

Michael Chertoff - our failed Homeland Security chief - has made a rather extraordinary claim this week that should have all American's concerned. Chertoff actually said that border agents have the right, for any reason they deem appropriate, to look into or even seize your laptop computer and all that it contains within. But that's not all, he also argued against creating a legal standard for searching Americans' electronics since it would "just lead to too much litigation."

So for those following this ominous turn of events, for ANY reason, YOUR laptop and everything you have stored on it, can be taken from you by the government...the same government responsible for Abu Graihb, Rendition, Guantanamo, warrantless wiretapping, military tribunals, the Patriot Act, and the evisceration of Habeus Corpus.

Senator Russ Feingold, the ONLY US Senator to vote against the Patriot Act, and the most consistent and committed privacy champion we have in Congress today, has already come out with a blistering critique of Chertoff's assertions.

Wired Magazine Reports:

Democratic Sen. Russ Feingold opposes border agents searching through Americans' laptops without cause, and he doesn't like how Homeland Security Chief Michael Chertoff articulated the government's current policy...


Feingold, an outspoken civil libertarian -- the only senator to vote against the Patriot Act -- begs to differ.

Secretary Chertoff's description of the newly published DHS policy on laptop searches was not just misleading – it was flat-out wrong. In an interview with, the Secretary stated that "[w]e only do [laptop searches] when we put you into secondary [screening] and we only put you into secondary [screening] ... when there is a reason to suspect something."

But the actual policy that DHS published says the exact opposite. It does not even mention secondary screening, let alone limit laptop searches to those cases, and it expressly states that Americans' laptops may be searched "absent individualized suspicion."

Secretary Chertoff's blatant mischaracterization of the DHS policy contradicts his claim to be engaging in greater "openness and transparency" on this important issue. His statements make it clearer than ever that as we work to protect our national security, Congress must also act to protect law-abiding Americans against highly intrusive searches.

The bad news is that the 9th U.S. Circuit Court of Appeals, considered the most liberal of the appeals circuit, ruled in May that border agents did not need any reason to look through a laptop, reversing a lower court that decided that laptops were closer to extensions of ourselves than the modern analogue of a suitcase.

I also came across a doctor's post on this recent pronouncement by the DHS, in particular how it might conflict with HIPAA (the Health Insurance Portability and Accountability Act) - the law that governs the privacy of your medical information.

Perhaps Health and Human Services (HHS) can take on DHS in defense of our medical privacy?

Here's a few clips from that post:

It (HIPAA) is very, very detailed, and requires quite a bit from your doctor. You've signed a form at the office of every provider you've visited that notifies you of your privacy rights. I cannot discuss your care in a hospital elevator. I can't send you an email regarding your health without making it very clear that any information in the email cannot be considered secure. I cannot disclose your health information to anyone else except under very specific and limited circumstances. HIPAA has radically changed the way we do things with health information (sometimes for the better, sometimes not).

Moving on to Homeland Security---DHS agents may, for any reason or none at all, seize my laptop and demand any security or encryption codes. My laptop not infrequently contains information covered by HIPAA (known as PHI, or Protected Health Information). Because of that, my laptop is secured via HIPAA-compliant security measures. Under the new DHS guidelines, I can be required to hand over my laptop and help officers access the information without any suspicion of wrong-doing. We have a little problem here...

HIPAA is often wrongly invoked. For instance, when I call another doctor's office to get information on a shared patient, the secretary will sometimes ask me for a HIPAA form signed by the patient before they give me the information. This is an incorrect application of HIPAA. The law is not designed to impede the treatment of patients.


Now, running my office and taking care of patients is about as far as my knowledge goes. What happens when an armed government agent asks me to turn over protected health information? HIPAA has a few clauses that are ambiguous to me as a doctor, specifically "Public Interest and Benefit Activities". The big get-out-of-jail free card is this one:

Required by Law. Covered entities may use and disclose protected health information without individual authorization as required by law (including by statute, regulation, or court orders).


It's time for HHS and DHS to get together and make a few clarifications for us, before we all have to further enrich our lawyers. Better yet, perhaps the ACLU could get together with other groups of converging interests and fight DHS on this one.

Clearly this is an issue that should be of utmost importance to privacy advocates, as it represents a gross and dangerous infringement on our most fundamental of constitutional protections. In other words, this is a MUST WIN battle in the long term war over what constitutes privacy in America today.

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