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.
Today the Washington Post ran a front-page story on a topic previously reported by ThinkProgress. Homeland Security is telling customs agents they can search, and take, travelers’ laptops and other electronic devices without needing any reasonable suspicion or probable cause.
The Post story highlights a new Customs and Border Patrol policy document that states:
In the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States.
The new policy says CPB can take away the laptop or analyze copies of its contents:
Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.
CBP says that the officers are supposed to return the laptop and destroy copies of the contents if nothing illegal is found (but be sure not to have any downloaded songs that you haven’t paid for).
That is far from comforting, even once you get your laptop back days or weeks later, because “nothing in this policy limits the authority of an officer to make written notes” about what was in the laptop.
In my Senate testimony in June, I highlighted many reasons for concern about suspicionless searches of laptops. The basic response from Homeland Security has been: “We can search everything in your suitcase at the border, so we can search everything in your laptop.” The new policy, though, highlights one intriguing protection at the border — the policy follows existing law and says “sealed letter class mail” can only be opened with probable cause.
In short, Congress has long recognized that searches of intellectual content at the border are intrusive. The government is forbidden from sniffing through your mail at the border without probable cause, and similar protections are due for laptops.
What to do next? The Post reports that Senator Russ Feingold, who called the recent hearing, intends to introduce legislation to require reasonable suspicion and bar racial profiling for laptop searches. In addition, join the “Hands Off My Laptop” online campaign, which has already sent over 20,000 messages to CBP about the need for privacy protections for laptops.