[Infowarrior] - U.S. defends laptop searches at the border

[Richard Forno]

U.S. defends laptop searches at the border

http://features.csmonitor.com/innovation/2008/07/10/us-defends-laptop-searches-at-the-border/

Courts have upheld routine checks of Americans’ hard drives at the  
border. Critics say they’re anything but routine.
By Alexandra Marks | Staff Writer for The Christian Science Monitor /  
July 10, 2008 edition

Is a laptop searchable in the same way as a piece of luggage? The  
Department of Homeland Security believes it is.

For the past 18 months, immigration officials at border entries have  
been searching and seizing some citizens’ laptops, cellphones, and  
BlackBerry devices when they return from international trips.

In some cases, the officers go through the files while the traveler is  
standing there. In others, they take the device for several hours and  
download the hard drive’s content. After that, it’s unclear what  
happens to the data.

The Department of Homeland Security contends these searches and  
seizures of electronic files are vital to detecting terrorists and  
child pornographers. It also says it has the constitutional authority  
to do them without a warrant or probable cause.

But many people in the business community disagree, saying DHS is  
overstepping the Fourth Amendment bounds of permissible routine  
searches. Some are fighting for Congress to put limits on what can be  
searched and seized and what happens to the information that’s taken.  
The civil rights community says the laptop seizures are simply  
unconstitutional. They want DHS to stop the practice unless there’s at  
least reasonable suspicion.

Legal scholars say the issue raises the compelling and sometimes  
clashing interests of privacy rights and the need to protect the US  
from terrorists and child pornographers. The courts have long held  
that routine searches at the border are permissible, simply because  
they take place at the border. Opponents of the current policy say a  
laptop search is far from “routine.”

“A laptop can hold [the equivalent of] a major university’s library:  
It can contain your full life,” says Peter Swire, a professor of law  
at Ohio State University in Columbus. “The government’s never gotten  
to search your entire life, so this is unprecedented in scale what the  
government can get.”

In recent court challenges, lower courts have ruled that laptop  
searches at the border are reasonable, just like searches of a  
person’s baggage or other physical property. But the courts have drawn  
the line at personal, invasive searches, ruling that things like  
“strip searches, body-cavity searches, and involuntary X-ray searches”  
are nonroutine, according to Nathan Sales, a professor of law at  
George Mason University in Arlington, Va., who recently testified  
before Congress.

Thus, they require reasonable suspicion, probable cause, or a warrant.

Advocates of the current practice say that the contents of a laptop  
are like the contents of a suitcase, and as such, customs officials  
have every right to go through them. They also argue that requiring  
probable cause for laptop searches would create huge delays at the  
border and give criminals and terrorists an easy way to bring  
dangerous things into the country.

“The idea that we would create some kind of sanctuary for criminals  
and terrorists to carry things across the border to me is absolutely  
ludicrous,” says James Jay Carafano, a senior research fellow at the  
Heritage Foundation in Washington. “It’s also unrealistic to require  
probable cause when you think about the millions of people a day who  
come in and go out of the country.”

People who’ve had their laptops and other electronic devices searched  
and seized believe that it’s reasonable and constitutional to expect a  
higher level of suspicion before customs officials take their laptop.

Amir Khan, an information technology consultant from the San Francisco  
area, has had his laptop searched twice on returning to the US from  
business abroad. Once, a customs official took it away for more than  
two hours.

“I don’t know what he did with it. He could have planted malicious  
software or copied files,” Mr. Khan says. “It was very intrusive and I  
think unreasonable. The Fourth Amendment makes it clear you can’t just  
stop anybody in the street and start searching them and their things.”

Many people, particularly in the business community, also say that a  
laptop is more like a virtual office than a piece of baggage. In  
addition, they believe the government should be required to tell  
people what it does with the information it copies.

“Right now, [DHS] seems to believe that it can hold anything it wants  
from your laptop, BlackBerry, or cellphone indefinitely,” says Susan  
Gurley, executive director of the Association of Corporate Travel  
Executives in Alexandria, Va. “There are no limits on what they can do  
with it or whether they can share it with any third party.”

Ms. Gurley and others in the business community would like DHS to be  
required to come up with a set of rules that determine what can be  
done with the information and how long it can be held. Civil rights  
advocates would like to see Congress go even further and determine  
that a search of an electronic device is invasive and requires  
probable cause.

“We treat our laptops, BlackBerrys, and cellphones as an extension of  
our brains. They can contain our most intimate thoughts,” says Tim  
Sparapani, senior legislative counsel of the American Civil Liberties  
Union.

As for creating a “sanctuary” for terrorists to bring in lethal plans,  
Mr. Sparapani counters: “Any terrorist worth his or her salt would  
send that stuff in an encrypted file from a remote location to a  
remote server somewhere in the United States.”

In an e-mail, DHS says its officers “have the responsibility to check  
items such as laptops and other personal electronic devices to ensure  
that any item brought into the country complies with applicable law  
and is not a threat to the American public.”