Our guest blogger, Peter Swire, is a senior fellow at the Center for American Progress Action Fund and served as the Clinton administration’s Chief Counselor for Privacy, working on encryption policy and other issues.
In recent months, I have become increasingly aware of what I consider a deeply flawed and disturbing policy. In April, a federal appeals court held that Customs and Border Patrol (CBP) can search laptops, and even copy their entire contents, as a routine part of border searches. The ruling held that the CBP does not need probable cause, or even the lower standard of “reasonable suspicion.”
The government’s legal theory is that it can open a suitcase at the border, so it can force a traveler to open a laptop and reveal passwords and encryption keys as a condition of entering the country. This simplistic legal theory ignores the massive factual difference between a quick glance into a suitcase and the ability to copy a lifetime of files from someone’s laptop, and then examine those files at the government’s leisure. Some of the problems that arise with this policy:
— U.S. policy creates bad precedents that totalitarian and other regimes will follow. If the United States adopts a policy, then it is generally much harder for the United States to object if other countries adopt a similar policy. Even if you trust handing your encryption keys to the United States, would you feel the same way handing the keys for all your communications to a totalitarian regime?
— Severe harm to personal privacy, free speech, and business secrets. Intrusive laptop searches by the United States and other governments would chill free speech. One vivid example is a human rights activist entering or leaving China, perhaps on a religious or other mission that is controversial in that country. The government may say that they would not do such things, but the lack of legal safeguards once again means that we must simply trust the government not to misuse its power.
— Disadvantaging the U.S. economy. Foreign tourists will not like the idea of having their laptop inspected at the border, and may decide to visit elsewhere. International conferences and conventions will choose to locate elsewhere. If laptop searches were vital to the fight against terrorism, then we might craft procedures to do them while minimizing the intrusion. The available cases, however, are not about terrorism-related investigations.
CPB has refused to acknowledge any limits on its discretion to search laptops, Blackberries, and other computing devices whenever someone enters or leaves the country. Today, I will be testifying before the Senate Judiciary Committee, which is holding the first hearing about this increasingly common problem. The hearing, called by Sen. Russ Feingold (D-WI), features a coalition of civil liberties and business groups that oppose these searches. I hope that today’s hearing will spell the beginning of the end of this troubling policy.