Is This The Best Homeland Security Can Do In Defending Laptop Searches At The Border?

from the probable-cause-is-so-last-millennium dept

The courts have said that US Customs officials do not need probable cause to search laptops. While some Senators are questioning why Department of Homeland Security is searching laptops without probable cause, the administration is working hard to defend such searches at the border as reasonable. However, they're not making very much sense. The article trots out James Jay Carafano from the Heritage Foundation with a couple of interesting statements. Let's take them in order. First:
"The idea that we would create some kind of sanctuary for criminals and terrorists to carry things across the border to me is absolutely ludicrous."
Well, that's not just an exaggeration, it's wrong. Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border? Of course that's not true. Data flows across borders via the network all the time -- with no customs review whatsoever. No one is walking across the border with a laptop thinking that's the best way to get some data across the border. Then there's this statement:
"It's also unrealistic to require probable cause when you think about the millions of people a day who come in and go out of the country."
Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America." Yet, we don't hear Carafano pushing for a removal of probable cause for searches on the street, do we?

The border searches of laptops issue is a ridiculous one. Yes, it makes sense to search through what physical goods you might be bringing into the country -- because you specifically chose to bring those goods into the country. But the digital things you have stored on your laptop are an overall archive. You didn't choose to bring those specific things across the border -- and it's not like going through a border crossing is the best way to move that content across the border. There's simply no reason for why laptop searches should be allowed without probable cause.

Filed Under: border searches, customs, homeland security, laptops


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  1. identicon
    James Carafano, 11 Jul 2008 @ 2:55am

    Give Me a Break

    Thanks for being concerned about an important issue, but lets take the discussion to a serious level. Your first comment:

    #1 Does Carafano actually believe that someone manually walking a laptop across the border is the only way that data gets across the border?

    Of course I don't, but the truth is some malicious actors do tranport information in that manner and searches are one way to find them. Arguing any law enforcement measure is not a "silver bullet" is not a very good complaint because no "law enforcement" measure is a "silver bullet." Following your line of argument there would be no law enforcement.

    #2 Let's just change a few words in that statement and see how Carafano feels about it: "It's also unrealistic to require probable cause when you think about the millions of people a day who walk up and down the streets of America."

    Of course, I don't because the law clearly states that the 4th amendment operates differently at the border. Your expectations of privacy, the courts have ruled again and again are lower at the border....and that courts have ruled that way for a reason...because it is impractical to use the same standard for people walking down the street.

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