Uncle Sam is downloading the contents of laptops, cellphones and digital cameras belonging to international travelers. The widespread snooping may help agents discover whether someone illegally downloaded music before boarding a long flight, but it also has chilling implications for personal privacy. A report released Jan. 29 by the Department of Homeland Security’s internal civil liberties watchdog saw nothing wrong with the searches.
According to the Customs and Border Protection policy directive, “With or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border.” The feds have defined “border” to include, say, the Kansas City International Airport, which is more than a thousand miles from an actual U.S. border.
In theory, grabbing someone’s digital camera or cellphone and downloading its contents is meant to catch individuals carrying child pornography or perhaps bank records providing evidence of money laundering. Homeland Security officials insist they need to be able to stop terrorists from moving “large amounts of information across the border via laptops and other electronic devices.” This is hardly plausible, considering there are plenty of easier ways to securely — and instantly — transmit the same information over the Internet without the risk of losing a physical device in transit.
Snooping bureaucrats have just given themselves a license to peep at vacation photos, pore over emails and save whatever looks interesting for future review. There’s far more reason to be concerned about misuse of such power than there is reason to think it serves a legitimate purpose. Journalists often travel with draft stories on their laptops or interviews with confidential sources on their voice recorders. Lawyers may store sensitive information about their clients in a document. Businessmen may be carrying a PowerPoint presentation with confidential information about a new product. A patient could be traveling with a copy of his medical records.
Though these searches are supposed to be conducted within the presence of the device’s owner, they don’t have to be. Moreover, the liberal policy directive allows agents to browse anything that looks interesting at their leisure as they may “detain electronic devices, or copies of information contained therein, for a brief, reasonable period of time to perform a thorough border search.” Brief is defined as five days, but the policy allows unlimited extensions.
Homeland Security’s chief privacy officer and now the Office for Civil Rights and Civil Liberties have given their blessing to this program. It’s a sign that these offices are serving as a rubber stamp, not the voice of reason and restraint that Congress intended.
Reform is long overdue. The Fourth Amendment couldn’t be more clear that a person’s “papers and effects” should be free from random searches, and that includes the digital version of a document. If border agents have reason to believe a particular traveler is a criminal, they should be able to convince a judge and obtain a warrant.
Since the 9th U.S. Circuit Court of Appeals feels otherwise, Congress needs to update the law so that airports are no longer treated as zones where the Constitution does not apply.
The Washington Times
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