Is a laptop searchable in the same way as a piece of luggage? The Department of Homeland Security believes it is.
For the past 18 months, immigration officials at border entries have been searching and seizing some citizens' laptops, cellphones, and BlackBerry devices when they return from international trips.
In some cases, the officers go through the files while the traveler is standing there. In others, they take the device for several hours and download the hard drive's content. After that, it's unclear what happens to the data.
The Department of Homeland Security contends these searches and seizures of electronic files are vital to detecting terrorists and child pornographers. It also says it has the constitutional authority to do them without a warrant or probable cause.
But many people in the business community disagree, saying DHS is overstepping the Fourth Amendment bounds of permissible routine searches. Some are fighting for Congress to put limits on what can be searched and seized and what happens to the information that's taken. The civil rights community says the laptop seizures are simply unconstitutional. They want DHS to stop the practice unless there's at least reasonable suspicion.
Legal scholars say the issue raises the compelling and sometimes clashing interests of privacy rights and the need to protect the US from terrorists and child pornographers. The courts have long held that routine searches at the border are permissible, simply because they take place at the border. Opponents of the current policy say a laptop search is far from "routine."
"A laptop can hold [the equivalent of] a major university's library: It can contain your full life," says Peter Swire, a professor of law at Ohio State University in Columbus. "The government's never gotten to search your entire life, so this is unprecedented in scale what the government can get."
In recent court challenges, lower courts have ruled that laptop searches at the border are reasonable, just like searches of a person's baggage or other physical property. But the courts have drawn the line at personal, invasive searches, ruling that things like "strip searches, body-cavity searches, and involuntary X-ray searches" are nonroutine, according to Nathan Sales, a professor of law at George Mason University in Arlington, Va., who recently testified before Congress.
Thus, they require reasonable suspicion, probable cause, or a warrant.
Advocates of the current practice say that the contents of a laptop are like the contents of a suitcase, and as such, customs officials have every right to go through them. They also argue that requiring probable cause for laptop searches would create huge delays at the border and give criminals and terrorists an easy way to bring dangerous things into the country. …