Should the Fourth Amendment's protection against unreasonable searches and seizures apply when U.S. Customs agents seizing your laptop at the border to examine your data? Currently the Department of Homeland Security as well as the courts say that such searches are permissible even when then there are no grounds for suspicion against you. But many of my readers feel that it's not only an unreasonable practice but a dangerous invasion of privacy.
A Senate committee hearing this week looked into this issue that we've discussed before. U.S. Customs and Border Protection can and do seize computers and other electronic devices at the border, in some cases keeping them for weeks at a time even when there's no data contraband found. Unfortunately, the Senators received no meaningful answers to their questions about the extent of the program, what kind of things the CBP is looking for, and what it does with the data it obtains.
Many readers responded to our earlier discussion that the CBP's practices are an unconscionable invasion of privacy, if not unconstitutional. "Either repeal the Fourth Amendment -- and maybe the rest of the Bill of Rights for good measure -- or fire the TSA and stop the border patrol's random searching," wrote one reader. "There used to be rule of law in this country. 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' Stepping across the border or onto an airplane is not 'probable cause.'"
Unfortunately, most of the court decisions on the issue have so far gone the other way. In April, the United States Court of Appeals for the Ninth Circuit ruled that the CBA could conduct searches without probable cause. And certainly some readers agreed that our normal privacy rights don't apply at the border. "While discretion and courtesy are excellent ideas, folks coming over any national border have no right to privacy," wrote one reader. "That's not to say that border guards should be harsh or impolite, but 'right' is a legal term that has no place in this discussion -- in short, a straw man. Second, a skilled cop will often engage a suspect or "person of interest" in a wide range of questions, to get a gestalt of that person's answers, demeanor, and behavior. If one of those questions happens to be 'what country are you from,' or 'are you a Muslim,' so what? I would ask that the guards (my employees as a taxpayer) ask it politely, but I wouldn't call it off limits."
But even that reader was concerned about what things the border guards might be looking for besides evidence of terrorism or child pornography. Are the searches really about fighting terrorism or piracy? "How long do you suppose it will be before Microsoft prevails upon U.S. Customs to check those laptops to make sure they're running Genuine Windows?" wrote another reader. "That's assuming that Customs isn't already doing so."
A reader who is often harassed when traveling because his name is similar to one on the TSA lists bemoaned how misguided our border security often is. "I'm a vet, I've been decorated, and I've never done anything more subversive than apparently share a name similar to someone who the feds don't like," the reader wrote. "The government spends a fortune shooting -- at best -- fleas while missing elephants. Airplane security could be obtained by creating barriers to the cockpit that actually work and by putting marshals on EVERY flight. That's too simple though--better to search old ladies bringing their grandkids to Disney than to use some common sense. Screening laptops coming across the border is maybe even dumber ... Millions of files cross the border electronically but we employ people in futile searches of laptops. Give me a break."
Benjamin Franklin once said that they that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety, another reader noted. "More secure borders is a noble intent. But do we want the KGB manning the gates? If they tell you that the innocent have nothing to hide, they never met a cop trying to meet quota. ... I run a network with HIPPA requirements and every laptop MUST be encrypted. It is not a choice to let anybody just look at your laptop. If they want to see it boot, that's fine. If they want to know what's on it -- GET A WARRANT! Otherwise 200 years of Constitutional rights and freedoms are gone and Democracy goes with it."
Do we really have to choose between liberty and safety on our borders? And does prying into personal and business data on people's laptops really make us any safer, or is it just a waste of CBP resources that could be better spent on scanning container cargo for nukes, for example? Tell us what you think - post your comments below or write Ed Foster at Foster@gripe2ed.com.