Senate Committee Debates Right to Search Laptops (PC Magazine)
Chloe Albanesius - PC Magazine Wed Jun 25, 11:02 AM ET
How would you feel about U.S. Customs officials copying the contents of your laptop's hard drive after you return from international travel? Would you like to show the government the photos on your digital camera, or explain how you know the people listed in your cell phone's address book?
More than likely, the answer is no. But an increasing number of U.S. travelers have found their electronic equipment subject to search after returning from abroad.
Experts agree that laptop searches are permissible and, in some cases, necessary to thwart terrorist activity, but members of Congress and interest groups have expressed concern over the perceived randomness of these searches, and requested clarity on how the Department of Homeland Security selects which devices it will search, and what it does with the collected information. On Wednesday, the Senate Judiciary Subcommittee on the Constitution took up the issue.
"It may surprise many Americans that their basic constitutional rights do not exist at our ports of entry even to protect private information contained on a computer," Senate Judiciary Committee chairman Patrick Leahy, a Vermont Democrat, said in a statement. "It concerns me, and I believe that actions taken under the cover of these decisions have the potential to turn the Constitution on its head."
Court cases regarding searches and seizures at the border have generally found that citizens should have a diminished expectation of privacy when re-entering the country because the U.S. has a right to protect itself and control what crosses its borders.
A number of Supreme Court cases have addressed the topic, including one in the early 1970's where the government stopped a man from bringing images of the Kama Sutra into the country. The court found that a "port of entry is not a traveler's home." Searching personal belongings at the border "is an old practice and is intimately associated with excluding illegal articles from the country," the justices found.
In the case of U.S. v. Ramsey, the government also found that a customs inspector had the right to open a package mailed from Thailand that he suspected – and later confirmed – contained heroin, despite not having a search warrant.
Technological advances, however, now allow the average person to travel with what might amount to thousands of pages worth of documents, confidential business secrets, or private health and bank records – all within the confines of a laptop or smart phone.
A U.S. appeals court in April ruled that customs officials at Los Angeles International Airport did not violate a man's rights when they searched the contents of his computer after suspecting it contained child pornography.
Last year, however, a Vermont federal judge ruled that a child porn suspect was not required to hand over his password because that would force him to produce evidence that could be used to incriminate himself. Next: Your Laptop, Your Property?
"A blogger's laptop undoubtedly reflects not only private thoughts but also draft of works in progress, contact information for sources, and confidential records," Lee Tien, senior staff attorney at the Electronic Frontier Foundation (EFF), told the Constitution subcommittee. "In short, these devices are virtual extensions of the person."
EFF has sued the Customs and Border Patrol (CBP) under the Freedom of Information Act (FOIA) to obtain details on CBP's policies and practices regarding interviews and searches at U.S. ports of entry. The case is currently pending in the U.S. District Court in the Northern District of California.
EFF is also assisting the Association of Corporate Travel Executives (ACTE) with its case against the government regarding reasonable suspicion and border searches.
"In today's wired, networked and borderless world, one's office no longer sits within four walls or a cubicle," said Susan Gurley, ACTE global executive director. "Warrantless and unanticipated seizure of one's mobile office has been allowed to occur and can immediately deprive an executive or company of the very data and revenue a business trip was intended to create."
Approximately 7 percent of ACTE members have had their laptops seized at the border, according to a February study conducted by the association. Eighty-one percent of respondents were unaware that their devices could be confiscated and held indefinitely, while 50 percent said such an event could damage their professional standing, Gurley said.
James Jay Carafano, a senior research fellow at the Heritage Foundation, called on DHS "to identify high risk travelers and target searches more effectively." The department "lacks an integrated intelligence plan," he said.
There is a need for laptop searches, however, he said. "Searching laptops serve as an important layer for DHS's counter-terrorism efforts," Carafano said. "There have been numerous instances where information gathered from terrorist laptops has provided crucial information."
Just how much information the government should be able to get its hands on is a point of contention.
Even if someone has erased documents on their computer, the government can technically gain access to that information if the laptop is seized, Gurley said. "In the olden days, if I didn't bring it, they couldn't find it."
"Let's say you're not a pornographer, you're not a terrorist, you're a business person," Gurley proposed. "Why can't the U.S. government tell us how long they're going to retain that information? That lack of information creates incredible anxiety for business travelers."
"We are not aware of any specific regulations that govern CBP" regarding searches of electronic equipment at the border, said Farhana Khera, president and executive director of Muslim Advocates.
Khera has had people contact her organization who have been asked the names and birthdates of their family members in the U.S. and abroad, which mosques they attend, to identify people in the photos on a digital camera, and their views on presidential candidates, among other things.
"I think all Americans are willing to put up with come inconvenience [to ensure safety] but what we're talking about is not just a mere interference," Khera said. Citizens need "to understand how the immense, broad power of CBP is being used at the border."
Subcommittee chairman Russell Feingold of Wisconsin blamed the Bush administration for the lack of transparency.
"This administration has been reckless with regard to the privacy of the American people," Feingold said. "If we are going to fix all this, we need to have a different environment with regard to the next administration, and I hope we get that."
Republican ranking member Sam Brownback of Kansas disagreed. "I think we can be sensible about that without the hyperbole of blaming an administration that wants to have a surveillance state. They don't want a surveillance state; nobody wants that."
What we do want is security, Brownback said.