Federal courts have long agreed that federal agents guarding the borders do not need a warrant or probable cause to search a traveler’s belongings. That exception to the Fourth Amendment needs updating and tightening to reflect the realities of the digital age.The government has a sovereign right and responsibility to secure the borders. The recent discovery of two powerful package bombs being shipped to the United States is a reminder of the many dangers out there.
There is also a big difference between government agents scanning items for explosives or looking through a suitcase full of clothing, and searching through the hard drive of a laptop computer containing work papers, financial records, e-mail messages and Web site visits.
Although the number of travelers whose devices are searched is small compared with the many millions who cross American borders each year, the problem is real. Between October 2008 and June 2010, more than 6,600 travelers — nearly 3,000 of them American — were subjected to such searches, according to government records released in response to a Freedom of Information request.
The George W. Bush administration first authorized border agents to seize and view the contents of laptops, smartphones, and other devices and copy and share data with other government agencies without need for any individualized suspicion of wrongdoing.
The Obama administration has tweaked the policy, requiring approval from supervisors to hold a seized device for more than five days, for example. The fundamental flaw remains: it permits the government to engage in indiscriminate and invasive fishing expeditions.
The Supreme Court has yet to confront the issue. But in a disappointing ruling in 2008, the United States Court of Appeals for the Ninth Circuit in San Francisco said that agents at a border need not meet even the low threshold of reasonable suspicion to justify a warrantless laptop search. The ruling reversed a lower court’s finding that laptops are “an extension of our own memory” and too personal to allow government searches without some reasonable and articulable suspicion.
The American Civil Liberties Union has now filed a lawsuit challenging the policy on behalf of press photographers, criminal defense attorneys and a doctoral student in Islamic studies whose laptop was searched and confiscated this spring.
Congress should not wait for resolution of the case. It should approve legislation along the lines of the Travelers’ Privacy Protection Act proposed two years ago in the Senate.
It would have confined border laptop searches involving American citizens and residents to situations where agents have a reasonable suspicion of illegal activity and require a higher standard of probable cause and a warrant or court order when a laptop is held for more than 24 hours. The measure also set strict limits on disclosure and sharing of information from devices seized at the border and requires the Department of Homeland Security to report regularly to Congress and the public on its search policies and practices.
The Senate bill’s leading sponsor, Russ Feingold of Wisconsin, was defeated in this month’s election. His three Democratic co-sponsors — Daniel Akaka of Hawaii, Ron Wyden of Oregon, and Maria Cantwell of Washington — should press the issue in the new Senate.
The challenge, as ever, is to strike a balance that grants sufficient leeway to protect the nation’s borders without allowing the intimate details of people’s lives and work to be searched, seized and copied on a whim.
Searching Your Laptop - NYTimes.com
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