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Think Tank Says DHS Should Stop Laptop Border Searches

from the but-dhs-will-ignore dept

We've definitely been concerned about Homeland Security and the US government's belief that it's okay to search laptops at the border without probable cause. We've discussed over and over again why the argument that it's the same as searching luggage simply doesn't make any sense. There are some key and important differences:
  • 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.
It appears others are starting to recognize these issues as well. A think tank called The Constitution Project has put out a report saying that Homeland Security should stop these laptop searches. The full report (pdf) is an interesting read, and makes the case that these searches, unlike searches of luggage, go beyond what is Constitutionally sound:
Historically, the scope of what was covered by the border search exception was fairly limited, since the exception is confined to the items a traveler carries across the border. As a practical matter, most private documents, letters, photographs, and other personal effects would remain in an individual’s home, safeguarded by full Fourth Amendment protections and the warrant requirement. With today’s technology, however, people can and do travel with vast quantities of private, personal information stored on their laptops and other electronic devices. Unlike at any time in the past, individuals who travel internationally, by virtue of legitimately choosing to carry electronic devices, are unknowingly subjecting volumes of personal information to involuntary and suspicionless search and review by federal law enforcement authorities. This problem is compounded by the fact that many electronic devices are used to carry both personal and business-related information. The continual evolution in how people use electronic devices in their everyday lives creates growing tension between the Fourth Amendment guarantees and what historically has been viewed as a narrow exception to the requirements for probable cause and a warrant.
Unfortunately, we've seen such arguments made in court, and very few courts seem sympathetic to this argument. I find the argument compelling, but courts don't seem bothered by the massive stretching of the once-narrow exception thanks to the massive change in technology. In part, I believe, it's because they haven't really taken into account just what a massive conceptual change it is to have all of your personal records stored on your computer. If you don't think of what the technology allows, but just think of it as "a thing" then you can see why a court would be confused. But, that's why we get so concerned about technologically illiterate courts deciding things that pertain to technology.

Of course, it's unlikely that this report will make much of a difference. Homeland Security has made it clear that they are going to search laptops and they're not really much interested in the intention behind the Constitution.
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Filed Under: 4th amendment, border, dhs, ice, laptops, privacy, probable cause


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  1. identicon
    Gib, 28 May 2011 @ 7:40am

    The Searches are a Pretext

    Traditionally, such searches were designed to prevent contraband (e.g., drugs, guns, exotic plants, etc.) into the country. I don't think DHS or anyone else believes that their occasional laptop searches will prevent child porn, plans for terrorist attacks, or any other "data contraband" from entering the country. As was noted, the data can be encrypted and sent over the Internet more easily.

    In most cases, the goal appears to use the searches to pursue individuals thought to be dangerous (e.g., suspected terrorists, pedophiles, etc.) and use what they find to deny them entry into the country or arrest them. That's what they did a couple years ago in searching the laptop of someone convicted of possessing child porn. It's no different than the cops asking a suspect's probation officer to perform a search as the whole warrant requirement is not needed. The looser rules (or no rules) at the border are not unique to data. They've been used as pretexts to bust suspects for decades when there wasn't enough probable cause for a warrant. Law enforcement is not going to give up this tool, nor are courts likely to set precedents by denying laptop searches that could affect other searches. Instead, we may want to focus on avoiding abuses. The concept of reasonable suspicion has been tossed around as a potentially lower standard. DHS has already been forced to clarify their processes more in this area. The last thing they need is a case of some rogue employee sending this kind of data over to WikiLeaks. More consistent rules, transparency, and oversight is better for everyone.

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