http://features.csmonitor.com/innovation/2008/07/10/us-defends-laptop-searches-at-the-border/
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Border check: A Customs and Border Protection officer searched a truck
at a border crossing in Blaine, Wash., in 2006. For the past 18 months,
officials at border entries have been searching some citizens' laptops.
(Andy Nelson – Staff/File)
U.S. 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
Re****ter Alexandra Marks discusses the concerns that business groups and
civil libertarians have over customs officials seizing laptops and
personal hand-held devices at the border.
Re****ter Alexandra Marks
New York
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
****ographers. 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
cla****ng interests of privacy rights and the need to protect the US from
terrorists and child ****ographers. 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 Wa****ngton. "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 Cor****ate 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."
Copyright © 2008 The Christian Science Monitor. All rights reserved.
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