Senate hears arguments over laptop searches at border

Privacy analysts told a Senate panel on Wednesday that while random laptop searches at U.S. borders is legal, the practice of downloading data or seizing computers poses serious privacy violations.

Comment on this article in The Forum.At a hearing of the Senate Subcommittee on the Constitution, privacy advocates said U.S. Customs and Border Protection has the legal authority to randomly search the laptops of travelers returning to the United States from a foreign country. The practice has helped prevent crimes such as terrorism and trade in child pornography, they said.

"It's a grave mistake to create any technology as a sanctuary, or to impede [Customs'] ability to search any technology," said James Carafano, assistant director of the Davis Institute for International Studies at the Heritage Foundation. Carafano, who testified before the subcommittee, said random searches were a critical element to prevent potential terrorists and criminals from recognizing a pattern and circumventing the search process.

But Customs officials do not need a reasonable suspicion to search laptops and download data, Larry Cunningham, assistant district attorney of Bronx County in New York, told the panel. "Historically, the government has broad authority at the border," he said. "The Supreme Court says persons crossing the border have a low expectation of privacy."

Cunningham said reasonable suspicion was required only for an invasive body search and that some governmental invasion of privacy was permissible, but he added that nothing would allow the seizure of a computer or copying of data without a reasonable suspicion of wrongdoing.

The hearing followed a judge's ruling in the 9th Circuit Court of Appeals in April that Customs did not need reasonable suspicion to search travelers' laptops and other electronic devices such as BlackBerrys and cell phones. The Association of Corporate Travel Executives and the Electronic Frontier Foundation filed amicus briefs this month asking the court to reverse the decision. The law has been challenged 11 times; each of those challenges was brought by individuals convicted of having child pornography on their laptops.

Proponents of random searches argued that going through a traveler's laptop was similar to searching closed containers, but subcommittee Chairman Russ Feingold, D-Wis., called that argument "disingenuous." He added: "The search of a suitcase -- even one that contains a few letters or documents -- is not the same as the search of a laptop containing files upon files. . . . The invasion of privacy represented by a search of a laptop differs by an order of magnitude from that of a suitcase."

Peter Swire, a professor at Moritz College of Law at Ohio State University who served for two years as chief counselor for privacy under President Bill Clinton, said the concerns of the search policy outweighed the benefits. He called it "bad policy and ultimately futile," saying moderately intelligent terrorists or criminals would use readily available encryption programs or other tactics to circumvent the search process. Searching without reasonable suspicion set a bad precedent and opened up the possibility that other countries would embrace the same practices, he added.

Swire suggested that reasonable suspicion would be an acceptable basis for searching a laptop, because downloading personal data created a permanent record and therefore was different from a traditional search. He maintained that because of the difference and the large amount of information on a personal computer or other electronic device, searching them could not be considered routine.

Nathan Sales, assistant professor of law at George Mason University, said travelers do waive their right to privacy when a search is deemed reasonable because it takes place at the border. He said the key issue was what defines a reasonable search.

Feingold also expressed concern that law enforcement officials could be flagging passengers for search when they returned from abroad, as an "end around" to avoid legal barriers to domestic electronic search and surveillance. "It's time for the law to catch up with reality," he said. "I don't think suspicion-less searches of laptops are consistent with our values."