Last week, the American Civil Liberties Union challenged in court the Department of Homeland Security's policy of allowing customs agents to seize and view the contents of laptops and other electronic devices without reasonable suspicion of wrongdoing. The lawsuit is a worthy attempt to close a gaping loophole in the protection of personal privacy. But courts so far have been inhospitable to such claims, which is why Congress must act.
According to the ACLU's complaint, between Oct. 1, 2008, and June 2, 2010, more than 6,500 travelers — nearly 3,000 of them U.S. citizens — had their electronic devices searched as they crossed U.S. borders under policies promulgated by two Homeland Security agencies: U.S. Customs and Border Protection, and Immigration and Customs Enforcement.
The lead plaintiff is Pascal Abidor, a U.S.-French dual citizen and doctoral student at McGill University in Montreal. Returning to the United States by train in May, Abidor had his laptop seized. After a customs agent found images related to Islamic studies, Abidor's academic specialty, he was handcuffed and detained. His laptop was finally returned to him 11 days later, after agents viewed several personal files, including the transcript of a chat with his girlfriend.
Two federal appeals courts — in cases involving child pornography found on computers — have ruled that border searches, even without a warrant or reasonable suspicion of wrongdoing, are broadly permissible under the government's sovereign right to secure the borders.
The ACLU, however, maintains that such searches of laptops and other devices violate both the 4th Amendment prohibition of unreasonable searches and seizures and the 1st Amendment's protection of free expression. We agree. Searching a computer, which can contain a wealth of personal information, is much more intrusive than inspecting baggage for drugs, weapons or other contraband.
Possession of child pornography is a vile offense, as is terrorism, but in combating those and other crimes, law enforcement agents aren't free to randomly search homes. Neither should they be allowed to engage in electronic fishing expeditions at the border.
Two bills introduced in the last Congress would provide a legislative remedy for such invasions of privacy. A proposal by Rep. Zoe Lofgren (D-San Jose) would make it clear that the sovereign power of the United States doesn't include the right to require any person entering the United States to submit to a search of the electronic contents of a laptop or similar device. (Her bill does allow searches based on other legal standards, such as reasonable suspicion of wrongdoing.) A more detailed bill offered by Sen. Russell D. Feingold (D-Wis.) would apply only to citizens and U.S. residents and would require reasonable suspicion for searches of electronic equipment and probable cause to seize such equipment.
We would prefer legislation covering all travelers that incorporated Feingold's standards. Such legislation should be adopted regardless of how the courts rule.