In June 2008, a federal appeals court ruled that Customs and Border Patrol (CBP) officers can search travelers’ laptops and copy their entire contents without probable cause or “reasonable suspicion.” CBP officers “can review and analyze the information transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States,” including information from laptops and other electronic devices. A CBP official dismissed growing public concern regarding this draconian policy at the time, saying the policy is akin to simply searching one’s backpack (it’s not).
The Washington Post reports today that the Obama administration will largely continue this policy:
The Obama administration will largely preserve Bush-era procedures allowing the government to search — without suspicion of wrongdoing — the contents of a traveler’s laptop computer, cellphone or other electronic device, although officials said new policies would expand oversight of such inspections.
The policy, disclosed Thursday in a pair of Department of Homeland Security directives, describes more fully than did the Bush administration the procedures by which travelers’ laptops, iPods, cameras and other digital devices can be searched and seized when they cross a U.S. border.
Privacy law expert Peter Swire noted a number of problems with this severely intrusive policy, namely that it limits privacy, free speech and business secrets, sets bad precedent for other more untrustworthy regimes throughout the world, and could discourage foreign travel to the U.S.
Obama administration officials say that more protections have been put in place. In one new “oversight,” CBP officers “should now generally take no more than 5 days” to conduct searchers (more than enough time to copy the entire contents of large hard drives). Homeland Security Secretary Janet Napolitano said the new policy “strike[s] the balance between respecting the civil liberties and privacy of all travelers.” Civil Liberties advocates disagree:
“Under the policy begun by Bush and now continued by Obama, the government can open your laptop and read your medical records, financial records, e-mails, work product and personal correspondence — all without any suspicion of illegal activity,” said Elizabeth Goitein, who leads the liberty and national security project at the nonprofit Brennan Center for Justice.
The Center for American Progress Action Fund and the Electronic Frontier Foundation mobilized action campaigns last year calling on citizens to urge the federal government to abandon this policy. The Post reports that according to DHS data, “[b]etween October 2008 and Aug. 11, more than 221 million travelers passed through CBP checkpoints. About 1,000 laptop searches were performed, only 46 in-depth.”