The Association of Corporate Travel Executives (ACTE) said its members report that clients have had laptops confiscated at airports by U.S. Customs and Border Patrol. ACTE surveyed its members which revealed that government agents are seizing and searching passenger laptops, computer discs and other electronic media as passengers enter the U.S.

Instituted during the drug war in the mid-1980s, the service broadened its interpretation of the policy to include seizing laptops, copying the hard drive and then returning them a about a week later, according to ACTE Attorney John Gurley of Arent Fox PLLC. However, one member is still waiting after more than a year.

ACTE surveyed its international constituency before its recent meeting in Barcelona. President Greeley Koch reported that 86.5 percent of respondents were unaware the government had such powers. Only one percent of members reported such incidents among their clients, accounting for the fact the policy has gone unnoticed for so long, said Koch. "If you extrapolate this percentage over millions of travelers, it can become a very substantial number. Both foreign nationals and U.S. citizens are equally at risk, he said.

ACTE is asking the agency for the criteria for triggering a laptop seizure and wants to know what happens to downloaded information after it is copied by the federal government and the traveler is "cleared." Is the information stored or filed, the organization asked, and if it is stored, who has access to it and how long is it kept? ACTE also wants to know who is responsible for lost or damaged computers.

While not challenging the constitutionality of the law or the government's right to conduct these inspections, ACTE is questioning the treatment of proprietary corporate data and personal data seized by the government as well as the handling of the travellers' hardware. "Seizing a laptop can be a significant hardship for a traveler, whose recent business notes are stored on the computer, without copies," said Koch. "In many cases, the laptop may be the only computer the traveler owns."

Conflicting court decisions in New York and California, ensure further legal action to test the policy. The California case - US v Arnold - found that the fourth amendment does not permit such confiscations and searches. The judge found the action was highly invasive and customs/border patrol must have reasonable suspicion not just random authority. However, the court did not say they would need a search warrant. The government intends to file an appeal in that case. ACTE hopes friends of the court will file briefs supporting the rights of travelers not to be subject to invasive searches.

The conflicting case was a ruling by a three judge panel on the Ninth Circult Court of Appeals in New York which refused to overturn a conviction and ruled that American citizens effectively enjoy no right to privacy when stopped at the border. That case involved a man ultimately convicted of receiving child porn but his lawyer sought to eliminate the evidence gathered on his laptop when a customs agent used the EnCase software to do a forensic analysis of his hard drive and retrieved the pornography file that had been deleted. "We hold first that the ICE's forensic analysis was permissible without probable cause or a warrant under the boarder search doctrine, wrote the presiding judge, who cited the 1985 case of US v Montoya de Hernandez, a drug case which involved an invasive bodily search. The U.S. Supreme Court upheld the physical search in that case, but Justice William Brennan and Thurgood Marshall dissented saying what de Hernandez experienced was "the hallmark of a police state." Brennan called for a reexamination of the policy's foundations. Border guards have also looked through the contents of digital cameras and British customs scans laptops for sexual material.