Note To DHS: Searching A Laptop Is Not The Same As Searching A Backpack

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.

swire.JPGThe Department of Homeland Security has offered a new, unconvincing argument for why they can conduct border searches, and take travelers’ laptops and other electronic devices without needing any reasonable suspicion or probable cause. The public needs to help Homeland Security understand why they’re wrong.

The background: Senator Russ Feingold held the first Congressional hearing on border laptop searches on June 25, and I testified about the many reasons such searches should only be done when the government has reasonable suspicion about a traveler. Homeland Security did not provide a witness, but issued guidelines for border laptop searches on July 16. These guidelines hit the front page of the Washington Post last week, with new focus on the issue in the traditional media and leading online sources such as DailyKos and Salon. Meanwhile, the Center for American Progress Action Fund began its “Hands off My Laptop” campaign, calling for Homeland Security to put privacy safeguards in place for these searches.

On August 5, Jayson Ahern, the Deputy Commissioner of Customs and Border Protection, responded to this growing public concern. His basic argument is there’s nothing new here at all — border searches have been conducted since the birth of the Republic:

Making full use of our search authorities with respect to items like notebooks and backpacks, while failing to do so with respect to laptops and other devices, would ensure that terrorists and criminals receive less scrutiny at our borders just as their use of technology is becoming more sophisticated.

Homeland Security seems to need help in understanding why searching a backpack for drugs is different from taking a laptop and copying everything on it. Here are three reasons why laptop searches are more intrusive:

1. Laptop searches last far longer. The backpack search is complete when the traveler leaves the border. For a typical laptop, the government can make a copy and then search every file at its leisure.

2. It’s like searching your home. Our laptops contain family photos, medical records, finances, personal diaries, and all the other detailed records of our most personal lives. Having the government rummage through all these files is like searching your home, and that requires a probable cause warrant.

3. Confidential and privileged information. Many kinds of confidential information are in laptops, including journalists’ notes about an investigative story, trade secrets and other key business information, and many more. Lawyers’ laptops contain attorney-client privileged information, as reinforced by a recent case that says the privilege is lost once the government sees a file during a search.

The Homeland Security blog lets you post your own reasons why searching a laptop is more intrusive than searching a backpack. Let them know your reasons, and participate in the online campaigns of “Hands Off My Laptop” and the Electronic Frontier Foundation.

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