When customs agents seized freelance journalist Bill Hogan's laptop earlier this year and searched his digital camera, he was livid.
"Particularly that they knew I was a reporter," he said. "They did not seem to give a rat's patootie."
It turns out Hogan's wasn't a unique experience. Business travelers, Muslim groups and privacy specialists are bristling over what government officials call "routine border searches," in which customs authorities select travelers at U.S. borders and search their electronics.
On June 25, the Senate Judiciary Subcommittee on the Constitution conducted a hearing on the issue. Presiding Sens. Russell Feingold (D-Wisc.) and Sam Brownback (R-Kan.) heard a host of civil libertarian concerns and several staunch defenses of the practice, mainly on the grounds of national security.
Hogan said that when his computer was searched, he'd been in the midst of a story using confidential sources in Iraq whose families had been threatened. By a stroke of luck, their personal information was not stored on his computer when agents seized it and kept it "between 10 days and two weeks," he said.
"Otherwise, I might have had to call those sources and tell them their identities had been compromised because the government had their information," he said.
While the seizure of his computer did not cause as much damage as it could have, Hogan was left without a laptop for two weeks.
"Where was my information? How long would it be there?" he recalled wanting to know.
Customs agents gave Hogan vague, unhelpful answers, he said. They handed him a receipt in exchange for his laptop. On the line where a reason for the search was supposed to be written, Hogan found nothing.
DHS responds, mostly with silence
To answer questions like Hogan's, the Electronic Frontier Foundation (EFF) and the Asian Law Caucus filed Freedom of Information Act requests with the Department of Homeland security in 2007, seeking "records concerning policies and procedures on the questioning, search, and inspection of travelers entering or returning to the United States at ports of entry."
The agency has not yet complied with these requests, despite a federal court in the Northern District of California finding in February that the agency had no legal basis to withhold the records.
At the Senate subcommittee hearing in June, DHS did not send a representative, although Feingold said he invited the agency and was "extremely disappointed" when no one showed.
Reading into the agency's absence, the senator said: "Once again, this administration has demonstrated its perverse belief that it is entitled to keep anything and everything secret from the public it serves and their elected representatives, while Americans are not allowed to keep any secrets from their government."
DHS did submit a written statement by Jayson P. Ahern, deputy commissioner for U.S. Customs and Border Protection. Ahern wrote that the agency's practices "do not infringe on Americans' privacy."
Besides, he argued, the searches and seizures have been upheld by the courts.
Is a laptop a container or an extension of the human body?
Indeed, the Ninth Circuit recently upheld laptop searches in United States v. Arnold, the case of a California man convicted of possessing child pornography after a border search of his laptop. But the underlying legal argument may not be rock-solid.
The EFF and the Association of Corporate Travel Executives filed a motion in June asking the Ninth Circuit to reverse its decision upholding "blanket search and seizure power."
The controversy comes down to this: Either a laptop is analogous to a suitcase, which border officials can rifle through without any prior suspicion, or it's much more complex.
The law recognizes as more than just a container any virtual extension of a person's brain or home or, more vividly, a metaphoric body cavity. …