Purses, fruitcake tins, laptops — what's the difference?
Editorial: Intrusive border searches don't compute
By Jacob Sullum, Special to The Chicago Sun-Times 
DHS's new laptop policy problematic for attorneys
If someone develops a practical mind-reading device, you can expect the Department of Homeland Security to argue that skulls are merely another "closed container" that officers guarding the border may search at will. After all, government agents have long been allowed to read documents in briefcases carried by Americans returning from abroad. Why should the medium in which information is stored make a constitutional difference?
 (AP Photo/Gene Blythe) |
That argument is only slightly more far-fetched than the one the DHS uses to justify its policy regarding border searches of laptop computers. Portable computers are in many ways extensions of our brains. Yet the DHS is treating them as if they were no different from purses or fruitcake tins.
Recently publicized DHS guidelines show that the department for years has been examining the contents of computers at airports "absent individualized suspicion." The guidelines say officers "may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search," which "may take place on-site or at an off-site location." This means a customs agent can seize your computer for any reason or no reason at all. He may rummage through your files while you stand there, hoping nothing embarrassing pops up, or he may take the computer to a back room. It may disappear for weeks or months as its contents are copied, analyzed and shared with federal agencies trying to determine whether you've broken any laws.
The DHS hasn't said how common these searches are. But when the Association of Corporate Travel Executives surveyed its members in February, 7 percent of the respondents said their laptops or other electronic devices had been seized.
As anyone whose computer has been stolen or irreparably damaged can testify, it's a traumatic experience to lose this repository of your personal and professional life, which may include confidential work in progress, sensitive financial, medical and educational records, and years of photos, music, notes and correspondence.
Knowing that government agents are perusing and passing around this information makes the experience even less pleasant, especially since your hard drive contains traces of deleted files and Web sites you've visited. But according to the DHS, all that's necessary to make this inconvenient and invasive search legally reasonable is your decision to take your computer abroad. In April, the U.S. Court of Appeals for the 9th Circuit agreed, reversing a lower court ruling saying such searches require "reasonable suspicion," a belief based on "specific and articulable facts" along with "rational inferences" drawn from them.
This standard, substantially less demanding than the "probable cause" necessary for a warrant, is not hard to satisfy.
In fact, DHS Secretary Michael Chertoff claims the department already follows it. "As a practical matter, travelers only go to secondary [examination] when there is some level of suspicion," he writes in a July 16 USA Today piece. But he warns "legislation locking in a particular standard would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."
It's worth emphasizing that Chertoff is talking about searches for incriminating data, not bombs. He says computer searches have turned up "violent jihadist material" as well as "scores of instances of child pornography." He does not say how many, if any, terrorist plots have been foiled. As electronic privacy expert Peter Swire points out, even a "moderately well-informed" terrorist can easily avoid detection by e-mailing encrypted data to himself or using software that hides files.
Judging from Chertoff's statements and the legal record, the government is using fear of terrorism to justify extraordinarily invasive, suspicionless searches in the service of ordinary police work. In these circumstances, the real danger is the absence of second-guessing.
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