For many airline passengers, carrying a laptop or smartphone through security is as familiar a part of the travel ritual as removing their shoes. But for travelers arriving in the United States from other countries, the process is not always so simple; thousands have had their electronic devices not just screened but confiscated, and sometimes not returned for months. Given the wealth of personal information contained in such devices, a search of their contents is infinitely more intrusive than a luggage search. That is why Congress should pass legislation requiring probable cause to view the contents of electronic devices at the borders.
According to a recent study by the Constitution Project, between Oct. 1, 2008, and June 2, 2010, 6,500 people — half of them U.S. citizens — were subjected to searches upon crossing the international border. The problem is not that agents are searching electronic devices to see if they contain explosives or some other threat. The issue in this case is that they are searching data. Present law permits border and customs agents to conduct electronic fishing expeditions.
Consider the case of Pascal Abidor, a U.S.-French dual citizen and doctoral student at McGill University in Montreal. Abidor was driving back to the United States when his laptop was seized. After a customs agent found images related to Islamic studies, Abidor's academic specialty, he was handcuffed and detained. His laptop was returned to him 11 days later after agents viewed several personal files, including the transcript of a chat with his girlfriend. (Abidor has sued the Department of Homeland Security over the search.)
The reason airport searches are exempt from the 4th Amendment's protection against illegal searches is that baggage might conceal contraband or dangerous materials. Extending that exception to allow federal agents to rifle through the content of electronic devices is unjustifiable. Unfortunately, two federal appeals courts, in cases involving child pornography, have upheld the Department of Homeland Security's policy of allowing searches of electronic devices at the border. Possession of child pornography is a heinous offense, but police are not free to search a home for it without probable cause. Neither should they be able to search electronic devices for pornography — or anything else — without a warrant.
Because the Department of Homeland Security seems disinclined to impose a ban on electronic searches, Congress must act. In the last Congress, Rep. Zoe Lofgren (D-San Jose) introduced legislation that 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. That legislation does not prevent agents from searching a laptop or phone if they have either probable cause or reasonable suspicion of illegal contents. We hope the legislation is revived — and approved.