Search and Replace
WHEN ATTEMPTING to enter or reenter the United States, noncitizens and citizens alike have become accustomed to all manner of searches. Luggage is examined at international airports by agents looking for illegal drugs, smuggled fruit, explosive devices and other forms of contraband. At the border, agents routinely search vehicles even when they don't have reasonable suspicion of wrongdoing. The Supreme Court has upheld such searches and unanimously concluded that the government's "interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." Border searches, the justices have said, "are reasonable simply by virtue of the fact that they occur at the border."
Recently, the Department of Homeland Security disclosed that it is using the same broad authority to search travelers' laptop computers and other electronic devices. This may very well be legal under existing laws; two federal appeals courts have concluded as much. But it should not remain U.S. policy.
Laptops have become the repository of people's most private thoughts, their most sensitive financial, medical and professional documents. Unlike a hard-copy book or notebook, the entire contents of a laptop -- including a history of Web sites visited -- can be copied with a push of a button. These copies can then be disseminated to various government agencies. This capacity to store a vast array of information opens up possibilities for mischief that do not exist with more traditional receptacles of information; it also makes laptops potentially invaluable tools for law enforcement.
The Department of Homeland Security argues that it has the right to search and seize a laptop without a warrant or even suspicion. Yet it concedes that it is impossible for it to conduct searches on every laptop that enters the country. As a result, the department says it already applies a "reasonable suspicion" standard to determine which laptops to search. For security reasons, the department declines to say what triggers such "reasonable suspicion." But the standard is generally so low that it can be triggered by a traveler's appearing nervous or giving inconsistent answers to routine questions, such as how long and where he or she will be staying while in the country.
The reasonable-suspicion standard should be written into law. Legislation should also specify that owners of laptops must be present while an agent conducts a preliminary search. Line agents should be required to get approval from a supervisor before copying files from or seizing a laptop and must be able to articulate, at that point, that there is probable cause to believe the laptop owner may have violated U.S. law.
These reasonable compromises should in no way impede the government's ability to search laptops for such things as child pornography or terrorist plans. But they would go a long way toward giving the average, innocent traveler some protection against frivolous or mischievous intrusions.