[Infowarrior] - WaPo OpEd: Search and Replace (Laptops)

[Richard Forno]

Search and Replace
Congress needs to set the rules for how border agents can delve into  
travelers' laptops.

http://www.washingtonpost.com/wp-dyn/content/article/2008/08/12/AR2008081202744_pf.html

Wednesday, August 13, 2008; A14

WHEN ATTEMPTING to enter or reenter the United States, noncitizens and  
citizens alike have become accustomed to all manner of searches.  
Luggage is examined at international airports by agents looking for  
illegal drugs, smuggled fruit, explosive devices and other forms of  
contraband. At the border, agents routinely search vehicles even when  
they don't have reasonable suspicion of wrongdoing. The Supreme Court  
has upheld such searches and unanimously concluded that the  
government's "interest in preventing the entry of unwanted persons and  
effects is at its zenith at the international border." Border  
searches, the justices have said, "are reasonable simply by virtue of  
the fact that they occur at the border."

Recently, the Department of Homeland Security disclosed that it is  
using the same broad authority to search travelers' laptop computers  
and other electronic devices. This may very well be legal under  
existing laws; two federal appeals courts have concluded as much. But  
it should not remain U.S. policy.

Laptops have become the repository of people's most private thoughts,  
their most sensitive financial, medical and professional documents.  
Unlike a hard-copy book or notebook, the entire contents of a laptop  
-- including a history of Web sites visited -- can be copied with a  
push of a button. These copies can then be disseminated to various  
government agencies. This capacity to store a vast array of  
information opens up possibilities for mischief that do not exist with  
more traditional receptacles of information; it also makes laptops  
potentially invaluable tools for law enforcement.

The Department of Homeland Security argues that it has the right to  
search and seize a laptop without a warrant or even suspicion. Yet it  
concedes that it is impossible for it to conduct searches on every  
laptop that enters the country. As a result, the department says it  
already applies a "reasonable suspicion" standard to determine which  
laptops to search. For security reasons, the department declines to  
say what triggers such "reasonable suspicion." But the standard is  
generally so low that it can be triggered by a traveler's appearing  
nervous or giving inconsistent answers to routine questions, such as  
how long and where he or she will be staying while in the country.

The reasonable-suspicion standard should be written into law.  
Legislation should also specify that owners of laptops must be present  
while an agent conducts a preliminary search. Line agents should be  
required to get approval from a supervisor before copying files from  
or seizing a laptop and must be able to articulate, at that point,  
that there is probable cause to believe the laptop owner may have  
violated U.S. law.

These reasonable compromises should in no way impede the government's  
ability to search laptops for such things as child pornography or  
terrorist plans. But they would go a long way toward giving the  
average, innocent traveler some protection against frivolous or  
mischievous intrusions.