Last week there was a Senate hearing about laptop searches at airports, specifically, about whether it’s reasonable to search the laptops of Americans who are not suspected of any wrongdoing when those people enter the country:
Advocacy groups and some legal experts told Congress on Wednesday that it was unreasonable for federal officials to search the laptops of United States citizens when they re-enter the country from traveling abroad.
Civil rights groups have said certain ethnic groups have been selectively profiled in the searches by Border Patrol agents and customs officials who have the authority to inspect all luggage and cargo brought into the country without obtaining warrants or having probable cause.
On the “Yes, search,” side is the standard claim:
The federal government says the searches are necessary for national security and for legal action against people who bring illegal material into the country.And to the argument that this is different from searching your home without a warrant, there’s this:
But Nathan A. Sales, an assistant professor at the George Mason University School of Law, said in a statement: “The reason the home has enjoyed uniquely robust privacy protections in the Anglo-American legal tradition is because it is a sanctuary into which the owner can withdraw from the government’s watchful eye. Crossing an international border is in many ways the opposite of this kind of withdrawal.”
On the other side, apart from the complaint of racial/ethnic/religious profiling, is the claim that your computer is an extension of your home and/or office these days, and the general disagreement with what Dr Sales says:
“In today’s wired, networked and borderless world, one’s office no longer sits within four walls or a cubicle; rather, one’s office consists of a collection of mobile electronic devices such as a laptop, a BlackBerry, PDA, and a cellphone,” Ms. Gurley said in prepared remarks.
She said the searches meant that “you may find yourself effectively locked out of your office indefinitely.”
Ms. Gurley said a concern was the lack of published regulations explaining what happened to data when it was seized and who had access to it.
Tim Sparapani, senior legislative counsel for the American Civil Liberties Union, said in an interview, “You can’t go into my home and search my computer without a warrant, but simply because I’m carrying my computer with me as I travel, you can search it.”
I won’t be a surprise that I’m on the second side, along with the ACLU and other civil rights groups. Here’s why:
There’s a significant difference between looking for weapons in your bags... and looking for information in them. I think few people would agree that the authorities have reason or right to look through whatever papers you’ve brought with you, to sit and read your personal papers while you wait, to confiscate them, or to take them off and copy them for later scrutiny.
Few would tolerate having their vacation film, for those who still use film, seized, processed, and scrutinized, along with some vague assurance that it’d be returned eventually. Few would stand by while their tape recordings were played back or copied before they could be allowed in the country.
We should be no more tolerant of scrutiny of writings, photos, audio, or video that’s carried on electronic storage. Your laptop, your iPod, your digital camera, your mobile phone... are not weapons, nor in any other way imminent threats.
Apart from that, once these things are taken from you, even when they’re returned you have no assurance that they haven’t been tampered with. Data could have been erased or altered. Software could have been installed. Hardware could have been changed. Perhaps your laptop will now record everything you do, down to every keystroke and mouse click, and send it to the Department of Homeland Security. Maybe now, whenever you transfer photos from your camera to your computer, DHS gets a copy.
Unlikely? Maybe it is. But it’s fully possible, and you have no way to know.
Protection from unreasonable search and seizure of electronic equipment is critically important to our freedom, because of what can be done with that equipment when it’s in the hands of the government. Unless they have cause for the search — and a warrant to support that — your belongings in general, and your electronic belongings in particular, should never leave your sight and control.
To drift from that is to drift toward a police state.
Update, 10 July: The New York Times agrees, weighing in with this editorial.
The Department of Homeland Security is routinely searching laptops at airports when Americans re-enter the United States from abroad. The government then pores over or copies the laptop’s contents — including financial records, medical data and e-mail messages. These out-of-control searches trample the privacy rights of Americans, and Congress should rein them in.
The government has the right to take reasonable steps to control what comes into the country, but the laptop-search program’s invasions of privacy go far beyond what is reasonable.