RIVKIN/CASEY: Border security equals sovereignty

OP-ED:

The war on terror has required a number of compromises between individual liberties and the community’s security, prompting a robust public debate. Unfortunately, some of the critics have opposed even the government’s more traditional public safety-related activities, as well as the new wartime measures. Examining the contents of laptop computers and other electronic devices carried by international travelers falls well within the government’s traditional right to conduct searches - of people, luggage and cargo - at the border. These searches are consistent with well-established legal principles and practices and play an important role in protecting our borders against terrorists and other threats.

Securing the nation’s border is, of course, an essential attribute of sovereignty. Federal officials have inspected persons and goods seeking admission into the United States since the earliest days of our republic. These inspections have always had the same fundamental purpose: to facilitate legitimate trade and travel, while upholding U.S. laws and public safety. The courts have ruled on numerous occasions that such “special needs” searches are fully consistent with the Fourth Amendment’s requirements for lawful searches and seizures and do not require a warrant. Such searches include the examination of documents and papers being brought into the United States.

The electronic devices on which those materials are stored enjoy no special immunity. There is no logical distinction between searching a pile of papers at the border and the search of a series of computer files. Indeed, in our digital age, it would be anomalous if customs agents could look at the former but would need to waive a computer - which might contain a cargo container’s worth of terrorist materials or contraband - into the United States without a second look. Nor, it should be noted, are document searches uniquely intrusive. Most Americans might find a customs agent’s search of their packed underwear far more upsetting.

To date, searches of laptops have been extremely effective. Among other things, they have revealed violent jihadist material, information about weapons, video clips of improvised explosive devices being used against U.S. troops and copious amounts of al Qaeda propaganda. In February 2007, for example, an individual arrived at San Francisco International Airport, seeking admission to the United States. Inspection of his computer revealed violent jihadist materials. Further investigation disclosed that the individual was a target of Hamas recruiting efforts. Laptop searches allowed Department of Homeland Security (DHS) to bring removal proceedings against this individual well before he was able to enter the United States.

Similarly, in September 2006, inspection of a laptop computer carried by a foreign national arriving at Minneapolis-St. Paul International Airport uncovered numerous video clips depicting the explosion of Improvised Explosive Devices (IEDs), pictures of high-ranking al Qaeda figures, and a recording of the individual in question reading his will. Based on this and further information uncovered by investigators, the individual was refused entry into the United States.

Finally, in November 2006, DHS conducted a traditional baggage inspection of a naturalized U.S. citizen based on a law-enforcement tip. The inspection revealed approximately $79,000 in unlawful U.S. currency. This was just the tip of the iceberg. Review of the individual’s laptop computer revealed information about cyanide and nuclear technology. This individual is now in prison for making false statements and cash smuggling.

These cases illustrate the importance of DHS’ continued ability to look at the contents of electronic devices entering the United States. It is also significant that in the first two cases, the DHS agents involved would probably not have been able to obtain search warrants had they been domestic police seeking to inspect a laptop that had already entered the country. Indeed, the authority of customs officers to conduct searches without meeting a defined threshold level of suspicion (what critics brand “suspicionless” searches) is essential to their mission. Customs officers rarely have the luxury of investigating individuals before they show up at a port of entry. At an airport or seaport, customs agents realistically have only seconds to decide whether to conduct secondary questioning or a search. Thus, in addition to their training and experience, customs agents must also inevitably rely on their intuition and judgment if they are to keep the border secure.

Only a tiny fraction of the 400 million travelers who enter the United States every year have their laptops searched. In practice, DHS agents only conduct these searches when they have some reason to question a traveler’s bona fides, try to minimize inconvenience to travelers, and have special measures in place for respecting privileged and confidential data. Even so, customs agents will rarely have the leisure to develop grounds for a search rising to the high-levels demanded of domestic law enforcement. This means that the alternative to “suspicionless” searches of persons and property entering the United States would frequently be no searches at all.

Therefore, recent congressional efforts to impose a more burdensome standard on DHS are misguided. Requiring customs officials to meet essentially the same standards of probable cause necessary to obtain a domestic warrant before examining the contents of a laptop computer, or even some lesser but still judicially-enforceable standard, would create new rules that impede legitimate efforts to keep the American people safe. In addition to impeding specific searches, it would have an overall chilling effect on customs agents’ vigilance at the border. Anyone who objects to a potential search can of course avoid the problem entirely by the simple expedient of leaving his or her laptop at home.

David B. Rivkin Jr. and Lee A. Casey are Washington lawyers who served in the Office of the Vice President and the Justice Department under Presidents Reagan and George H.W. Bush.