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Politics & The Nation BY ELLEN NAKASHIMA Criminal defense lawyers,
press photographers and a uni- versity student are challenging the Obama administration’s search policy permitting officers at U.S. borders to detain travel- ers’ laptop computers and exam- ine their contents even without suspecting the traveler ofwrong- doing. In a federal lawsuit to be filed
Tuesday in theEasternDistrict of New York, the plaintiffs allege that the Department of Home- land Security policy violates con- stitutional rights to privacy and free speech. At issue is the government’s
contention — upheld by two federal appeals courts — that its broad authority to protect the border extends to reviewing in- formation stored in a traveler’s laptop, cellphone or other elec- tronic device, even if the traveler is not suspected of involvement in criminal activity. In the gov- ernment’s view, a laptop is no different than a suitcase. After the Sept. 11, 2001, terror-
ist attacks, the George W. Bush administration took an expan- sive view of the government’s authority at the border in an effort to stop terrorists from entering the country, and to find evidence of terrorist plots. The Obama administration
has followed suit, the plaintiffs said, with a pair of DHS policies
EZ RE
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TUESDAY, SEPTEMBER 7, 2010 New lawsuit to challenge laptop searches FDA nears approval as food
issued by U.S. Customs and Bor- der Protection (CBP) and U.S. Immigration and Customs En- forcement in August 2009 that reaffirmed the policy of suspi- cionless searches at the border. “Keeping Americans safe in an
increasingly digital world de- pends on our ability to lawfully screen materials entering the United States,” Homeland Secu- rity Secretary Janet Napolitano said when the policies were is- sued. “The new directives . . . strike the balance between re- specting the civil liberties and privacy of all travelers while ensuring DHS can take the law- ful actions necessary to secure our borders.” But the American Civil Liber-
ties Union, which is filing the case on behalf of the plaintiffs, argues that laptops and smart- phones, unlike a suitcase of clothes and toiletries, contain highly personal information, from financial records to family photos. The government should have a “reasonable suspicion” that a crime has been or is about to be committed before review- ing such information, the plain- tiffs contend. Justice Department spokes-
man Charles Miller said that once the lawsuit is filed, “we’ll review it and make a determina- tion on how we’ll ultimately respond in court.” ACLU attorney Catherine
Crump said this case may be more likely to succeed than pre-
vious challenges, which involved criminal defendants whose lap- tops contained child pornogra- phy. “The plaintiffs in our case are
extremely sympathetic, and the harms they suffered are grave,” Crump said. “I’m optimistic that a judge seeing that will be more inclined to recognize that the Fourth Amendment requires reasonable suspicion for search- es that are this invasive.” The plaintiffs are the National
Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association and Pascal Abidor. Abidor, a 26-year-old doctoral student and dual U.S.-French citizen, was on an Amtrak train from Montreal to New York to visit family last spring when his laptop was searched and confiscated by CBP officers. “I had no idea how this would
end, what repercussions this would have on any aspect of my life,” Abidor said in an interview. “Here my laptop and hard drive were taken away from me, after having done nothing. Having no control over what might happen to me, or over what the govern- ment might believe me to be up to, was extremely frightening.” The following account is taken
from the complaint and the in- terview. On May 1, at an inspection
point at the border of Quebec and New York, a CBP officer who had examined Abidor’s two pass-
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ports, which had visas for Jor- dan, Syria and Lebanon, asked to inspect his belongings. In the train’s cafe car, the officer turned on his laptop, ordered him to enter his password and began to examine its contents. Abidor, whose focus is Islamic
studies atMontreal’sMcGillUni- versity, frequently travels inter- nationally to conduct research. She asked him about personal
photos as well as pictures he had downloaded from the Internet for research, including images of rallies by the militant Islamist groups Hamas and Hezbollah. She asked him why he had “this stuff” on his computer, the com- plaint said. He said that his research focused on the modern history of Shiites in Lebanon. He was later handcuffed and
detained for three hours, and agents asked him to explain why he had so many “symbolic mate- rials” in his possession. Abidor’s laptop and hard drive
were returned to him 11 days later. By examining the “last opened” date of files, Abidor saw that officers had examined direc- tory folders on his laptop as well as backup documents stored on his external hard drive. The files included personal photos, a tran- script of a chat with his girl- friend, copies of e-mail corre- spondence, class notes and his tax returns. Today, Abidor travels with less
information on his computer.He “self-censors” photos he down- loads to his computer.He said he will have to warn people he interviews for research that U.S. officials may have access to the notes, but fears this will discour- age interviewees frombeing can- did. The NACDL and the New York
Civil Liberties Union are co- counsel in the case. Abidor is among 6,671 travel-
ers whose laptops or other devic- es were searched between Octo- ber 2008 and June 2010, accord- ing to the ACLU. Slightly less than half — 45 percent — were U.S. citizens. Eighty-three percent were
male, 52 percent identified as white, 10 percent as black and 9 percent as Asian. No category was provided for people of Mid- dle Eastern descent. The policy also permits agen-
cies under certain circumstances to share the data found on travel- ers’ devices, which was done 282 times between July 2008 and July 2009, according to the ACLU.
nakashimae@washpost.com
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SF BY LYNDSEY LAYTON The Food and Drug Adminis-
tration is poised to approve the first genetically modified animal for human consumption, a highly anticipated decision that is stir- ringcontroversyandcouldmarka turningpoint inthewayAmerican foodisproduced. FDA scientists gave a boost last
week to the Massachusetts com- pany that wants federal approval to market a genetically engi- neered salmon, declaring that the altered salmon is safe to eat and does not pose a threat to the envi- ronment. “Food from AquAdvantage
Salmon . . . is as safe to eat as food from other Atlantic salmon,” the FDAstaffwrote inabriefingdocu- ment. Those findings will be pre- sented Sept. 19 to a panel of scien- tific experts that will advise top officials at the FDA whether to approve the altered salmon. The panel is holding two days ofmeet- ings to hear fromFDA staffmem- bers, the company behindAquAd- vantage andthepublic. AquAdvantage is an Atlantic
salmonthat has beengivena gene from the ocean pout, an eel-like fish, which allows the salmon to grow twice as fast as a traditional Atlantic salmon. It also contains a growth hormone from a Chinook salmon. AquaBounty, the Massachu-
setts company that first applied to the FDA for permission to sell its fish in 1995, said themodified fish is identical to theAtlantic salmon, except for the speedof its growth. “We’ve been studying this fish
formore than 10 years,” said Ron- aldL.Stotish, thecompany’spresi- dent and chief executive. “Inchar- acteristics, physiology, behavior, this is anAtlantic salmon. It looks like an Atlantic salmon. It tastes like anAtlantic salmon.” The team of scientists at the
FDA that reviewed AquaBounty’s application seems to agree. “We have found no biologically rele- vantdifferencebetweenfoodfrom [AquaBounty salmon] and con- ventional Atlantic salmon,” the briefingdocument said. But
scientists, consumer
groups and environmental orga- nizations are concerned about boththependingdecisionandthe process that theFDAuses todeter- mine whether the genetically modifiedfishis safe. The agency is evaluating the
fish as if it were a new veterinary drug,whichmeans that the FDA’s deliberations are behind closed doors and that AquaBounty can claim much of the research and other supporting data it supplies to theFDAis confidential. “Critical information about the
whole process has been kept from the public and organizations that focus on these issues,” said WenonahHauter, executive direc- tor of Food andWaterWatch, part of a coalition of 31 organizations and restaurant chefs that is de- manding that the FDA deny ap-
of genetically altered salmon
proval of the altered fish. “There’s a transparencyproblem.” Siobhan DeLancey, an FDA
spokeswoman, said the agency is following rules. “We do have obli- gations under the regulations to protect company confidential in- formation,” she said. Hauter and other critics said
the information shield makes it difficult for independent scien- tists to thoroughly analyze claims by AquaBounty or the FDA staff that the alteredfishposesnolong- term risk to human health or the environment. Consumer groups and environ-
mental organizations are particu- larly concerned that AquAdvan- tage Salmon could escape their fish farms to threaten the wild salmon population, which is en- dangered,Hauter said. Anne Kapuscinski, a professor
at Dartmouth College and an ex- pert on the safety of genetically modified organisms, said she is uncertainhowwell theFDAisable to assess the risks to the natural world that may be posed by an organismcreatedina laboratory. “If you put the top scientific
researchers in this area into a room, they would have to work very hard together to figure out the conclusionfor ecological risk,” Kapuscinski said. “This is very, very complex.” The pending decision is being
tracked by biotechnology compa- nies that have investedmillions of dollars in developing genetically modified animals for food and are waiting forFDAapproval. Scientists at the University of
Guelph in Ontario have asked the FDA to approve their “Enviropig,” a hog genetically altered to pro- duce environmentally friendly manure.Hematech of Sioux Falls, S.D., is developing genetically modifiedcows thatareresistant to madcowdisease. TheUnitedStateshasapproved
genetically modified plants such as cornandsoybean. The fish decision is expected to
reverberate beyond the United States.“If these genetically engi- neered salmon are approved, it will be setting worldwide prece- dent because salmon is a global commodity,” Kapuscinski said. “It will be the first genetically engi- neered animal approved for hu- man consumption and for wide- scale farming.” In developing its fish,
AquaBounty took an Atlantic salmonandinsertedagrowthhor- mone gene from a Chinook salm- on as well as an “antifreeze” gene fromthe oceanpout. Conventional salmon stop
growing incoldweather andgrow very slowly in the first year of life. But the pout’s antifreeze gene al- lows the salmon to produce growthhormones all year, andthe geneticallymodifiedfishcangrow to market size in 18 months in- stead of three years, AquaBounty said. That means farmers can speed production and increase yields, the company said.
laytonl@washpost.com
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