There's been plenty of concern over the past few years with regards to Homeland Security's claims that it has the right to inspect the contents of your laptop
at the border, even without any probable cause. While it may be well established that the 4th Amendment doesn't apply until you're actually in the country, that doesn't mean there aren't some serious questions raised. I, like many others, have no problem with border searches of actual physical containers and luggage at the border. That makes perfect sense, because it's physical goods that you're purposely trying to bring directly into the country. You packed them with the specific idea of bringing them into the country.
But stuff on your laptop is different in two very important ways:
- You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include.
- The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.
Thus, it makes little sense for border control to search the contents of your laptop other than
if the gov't wants a random "free pass" at checking out some content about you. DHS' insistence that it needed the right to search laptops at the border made little sense, and some of our elected officials pushed out bills
to curb such border searches, though none have passed.
Instead, the new head of DHS has "revised" the rules for laptop searches
, but they're only slightly better in that the old rules were "anything goes," while the new rules are "we're still searching laptops, but we have a few rules." The main components of the new rules are that you're allowed to be present in the same room as your laptop, phone or device as it's being searched -- but not necessarily to see what border patrol is doing. Also, they can't keep your laptop for more than five days, which seems pretty damn long to me. Though, as some note, this basically means that you should make sure any encryption on your laptop takes more than five days to crack
DHS boss Janet Napolitano's reasoning for the searches is hardly compelling:
"Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,"
Um... right, but, again, the contents of the a computer laptop can easily enter the United States via the internet
with no border control process whatsoever. The whole claim that this has anything
to do with screening materials entering the US is totally bogus.
On top of this, the other thing that's not at all clear is how far the "search" can go. With a growing number of "cloud" based services in use, many of which act as if they're local, can the border patrol search those as well? For example, I use Jungledisk, which gives me a virtual drive that shows up in my file system as if it were a local hard drive, even though it's hosted in some data center somewhere. It looks like a local drive... but it's not actually on my laptop. Would border patrol have the right to search that, even though the contents of that drive are not
actually traveling across the border?