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Taking an international trip? Scrub those hard drives!

August 28, 2009 |  2:47 pm

Department of Homeland Security, ICE, customs, laptops, 4th Amendment, warrantless searches The change in administrations has led the Department of Homeland Security to adjust its much-maligned policy regarding laptop searches at the border. It's not going to search fewer laptops, iPods or other electronic devices, necessarily; it's just going to take more care not to disclose any sensitive information it finds on them.

As News.com's Declan McCullagh reported, the Obama administration continues to take an extremely permissive view toward the power of federal agents at the border. The new directives from Immigration and Customs Enforcement and U.S. Customs and Border Protection reiterate the Bush administration's stance that agents have the authority to search any digital storage device entering the country, even when there is no suspicion of wrongdoing. They'll need to show probable cause only if they want to seize the device or retain copies of its contents. The primary change in policy is more administrative oversight over how the devices and data are handled after they're seized....

Although the 9/11 attacks led to the initial increase in border security, the DHS argues that agents need to look at hard drives to guard against a variety of criminal acts. Note the order in which the crimes are listed in this passage from the new Immigration and Customs Enforcement directive:

As the Nation’s law enforcement agencies at the border, CBP interdicts and ICE investigates a range of illegal activities such as child pornography; human rights violations; smuggling of drugs, weapons, and other contraband; financial and trade-related crimes; violations of intellectual property rights and law (e.g., economic espionage); and violations of immigration law, among many others. CBP and ICE also enforce criminal laws relating to national security, terrorism, and critical infrastructure industries that are vulnerable to sabotage, attack or exploitation.

The 4th Amendment protects Americans against warrantless searches of their possessions within U.S. borders, but not at the border, as the Supreme Court ruled in U.S. v Flores-Montano. The only limit is that a search has to be routine, not unusually intrusive. The Times' editorial page has argued that reading the contents of someone's hard drive is the epitome of an intrusive search, but the Ninth Circuit disagreed last year in the case of a traveler whose laptop allegedly held kiddie porn. Nevertheless, civil libertarians such as the Electronic Frontier Foundation insist that agents must have at least some "reasonable suspicion" of a crime before peering into the contents of a traveler's computer or MP3 player.

The best argument that the DHS makes for its approach is that criminals are using new electronic storage devices to smuggle illegal items into the United States:

As the world of information technology evolves, the techniques used by CBP and ICE and other law enforcement agencies must also evolve to identify, investigate, and prosecute individuals using new technologies in the perpetration of crimes. Failure to do so would create a dangerous loophole for criminals seeking to import or export merchandise contrary to law.

No question, kiddie porn is a problem. But the DHS approach makes everyone carrying a laptop or storage device across the border a suspect, increasing the chance of a misguided arrest. How many people have used their laptops to view a photo or video of a relative's toddler running around nude? Those images could still be cached on the computer. How many laptops have been infected with malware that turns them into unwitting relay points for all sorts of digital contraband? And how many laptops and iPods are loaded with movies in formats not authorized by Hollywood? Do you really want to try to persuade an agent that you made all those copies from DVDs that you own?

OK, I'm reaching a bit. The most distressing thing about the DHS asserting unfettered power to search laptops is the sense that you can't keep anything secret from the prying eyes of government. The directives made it clear that travelers can't exclude any type of information from a search -- not trade secrets, not contract negotiations, not even communications with their doctors or lawyers. Lucky for us, the percentage of travelers searched is minuscule -- the department reported only about 1,000 laptop searches since Oct. 1, and only 46 "in-depth" examinations, out of 221 million border-crossers. The enormous volume of travelers forces DHS to be extraordinarily selective in its application, as it should be. Still, we'd rather be protected by the 4th Amendment than by the crowds at the border.

Photo: The line for non-citizens arriving at Newark International Airport. Credit: Chris Hondros / Getty Images

-- Jon Healey

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