Electronic Border Control

Published on
by
the San Francisco Chronicle

Electronic Border Control

by
Elizabeth Goitein

Suppose you're returning home from a vacation in Cancun. A customs agent asks you to open your suitcase so he can check its contents. So far, so good.

Now, the agent asks you to log on to your laptop so he can read your e-mails and personal files and examine which Web sites you've visited. He makes a copy of your hard drive so the government can comb through its contents. You've done nothing to give the agent any cause for suspicion.

That can't be legal - can it?

Until recently, it would not have been allowed. Long-standing customs directives prohibited agents from reading travelers' personal documents unless they reasonably suspected them to be merchandise or evidence of illegal activity.

Then the Bush administration changed the rules, allowing agents to "review and analyze" the contents of electronic devices, including laptops, cell phones and BlackBerrys "absent individualized suspicion." Agents also could make copies of the devices' contents and share them with other government agencies. Newspaper editorials condemned the change, and members of Congress introduced bills to restore the "reasonable suspicion" requirement. In a Senate Judiciary Committee hearing in May, Secretary of Homeland Security Janet Napolitano promised to review the policy.

Homeland Security has now released a new policy - and it is the same as the Bush policy in almost every relevant respect.

The government may still search electronic devices without reasonable suspicion, retain copies indefinitely to complete its search and share information with other agencies. The new policy includes more "procedural safeguards," such as supervisory approval, to ensure adherence to the rules. But when the operative rule is "search at will," how useful is a procedural safeguard?

Both administrations have cited national security to justify suspicionless searches. There's no evidence, however, that a suspicionless search has ever turned up a security threat. In every success story cited by the government thus far, there was ample reason for suspicion. Indeed, suspicionless searches are likely to be counterproductive, as they waste limited resources that would be better spent on real threats.

Suspicionless searches also hurt American businesses. Many companies are now taking expensive measures, such as purchasing separate travel laptops, to prevent the disclosure of proprietary information at the border - at a time when they can ill afford the financial burden. And suspicionless searches can lead to ethnic and religious profiling. Already there is evidence that some customs agents, freed from the requirement of "reasonable suspicion," have been targeting Muslim Americans and Americans of Arab or South Asian descent.

Then there's the question of legality. The Fourth Amendment prohibits unreasonable searches and seizures. Suspicionless searches of suitcases and other "closed containers" at the border are considered reasonable, while searches of the person require grounds for suspicion because of the greater dignity and privacy interests involved. The government argues that searching a laptop is legally identical to searching a suitcase, and so far, several courts have agreed. But it's time for the law to catch up with technology. A laptop is not just a "closed container"; the privacy interests at stake are of a much higher order.

Ultimately, though, this issue goes beyond the law. President Obama promised to keep the country safe without sacrificing our values. Freedom from unwarranted government intrusion into our private lives is one of the values Americans cherish most. The president should honor his promise and restore the reasonable suspicion requirement.

Elizabeth Goitein is the director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law.

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