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Search for digital contraband hit

'Suspicionless' intrusions rile Democrats

By S.A. Miller (Contact) | Monday, June 30, 2008

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Terrorist suspects, child pornographers and a corporate spy smuggling defense secrets have been apprehended upon entering the U.S. when data on their laptop computers were searched by Customs and Border Protection officers, but some Senate Democrats want to restrict routine "suspicionless" digital intrusions.

Sen. Russ Feingold, riled by recent court rulings that upheld government power to search computer files just like the content of any luggage or container entering the country, is calling for laws to protect against "this gross violation of privacy."

"If the courts can't offer that protection, then that responsibility falls to Congress," said Mr. Feingold.

The Wisconsin Democrat is chairman of the Senate Judiciary subcommittee on the Constitution, civil rights and property rights, which held a hearing last week on customs searches of digital technology such as laptop computers, hand-held devices and disk storage drives.

The Supreme Court holds that the Fourth Amendment protection against unreasonable search and seizure does not apply to government inspection of baggage at ports of entry "based on its inherent sovereign authority to protect its territorial integrity," according to its 1979 decision in the marijuana-smuggling case of Torres v. Puerto Rico.

But the high court set limits, requiring "probable suspicion" to conduct a strip search or cavity search.

Mr. Feingold has not proposed legislation that would treat a laptop computer more like a body cavity than a suitcase, but he made that argument at the hearing.

"The search of a suitcase - even one that contains a few letters or documents - is not the same as the search of a laptop containing files upon files of photographs, medical records, financial records, e-mails, letters, journals and an electronic record of all Web sites visited," he said. "The invasion of privacy represented by a search of a laptop differs by an order of magnitude from that of a suitcase."

The congressional inquiry was a response to complaints by travelers and business groups that officers of U.S. Customs and Border Protection (CBP) confiscate, search and sometimes copy disk drives containing sensitive personal information.

Dozens of lawsuits challenging the policy have been filed, nearly all of them by Muslims or travelers of Middle Eastern or South Asian descent, underscoring charges of ethnic and religious profiling in the searches.