EDITORIAL: Expanding government snoopery

A federal court OKs unlimited electronic surveillance at airports

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A nosy neighbor, gossip or voyeur looking for a job can look beyond a career at the National Security Agency. The federal government offers a wealth of opportunities for reading other people’s mail. We’ve come a long way from the other extreme of foolishness, when a Cabinet officer once shut down a code-breaking program because “gentlemen don’t read each other’s mail.” But that was then. On New Year’s Eve, a federal magistrate gave the Department of Homeland Security carte blanche to seize laptops and iPhones at the airport so they can read at leisure without going to the trouble of establishing cause to believe the devices were being used in the commission of a crime. No warrant needed.

If a passenger is taking the laptop on an international flight, decreed U.S. District Judge Edward R. Korman, that’s reason enough to jettison the Fourth Amendment, which prohibits reading a citizen’s papers and effects without a warrant. Such snooping, said Judge Korman, who was appointed to the court by President Reagan, is “simply among the many inconveniences associated with international travel.”

But life is not that simple where the rest of us live. Professional organizations of press photographers and criminal defense lawyers have a great deal at stake. They filed a lawsuit to put an end to such policies of the Customs and Border Protection (CBP) and the Immigration and Customs Enforcement (ICE) that empower agents to take laptops, cellphones, cameras, tape recorders and similar electronic devices. The agents can copy any photographs that catch their professional interest (or fancy), even download music files or movies and put it to use as the agent sees fit (or naughtily unfit, as the case may be). Laptops can be kept for 30 days or more without cause.

These measures are intended to fight terrorism, but angry Islamic jihadists aren’t the only passengers at the airport. Many travelers have perfectly good reasons for keeping prying eyes out of their electronic documents. Doctors have medical records. Lawyers keep notes. Businessmen hold trade secrets. Journalists maintain confidential sources. Each of these occupations have an ethical and sometimes legal duty to keep such material private.

Judge Korman dismisses such concerns, citing a Homeland Security policy that calls for an extra lawyer when a passenger asserts attorney-client privilege. “A careful reading of CPB and ICE directives,” wrote the judge, “indicates that these agencies are sensitive to the privacy and confidentiality issues posed by border searches of electronic devices.” In fact, he said, anyone who expects law enforcement agencies to respect such legal boundaries must be “drinking the Kool-Aid.” If you don’t want the government reading your electronic documents, leave them at home.

Border-security agents routinely require airline passengers to turn on their laptops, enter the password, and allow the agent to roam through the folders on the hard drive. If anything interesting (or entertaining) catches the agent’s eye, he can keep the laptop or camera or cellphone. With such authority, agents can punish at will. The passenger has no recourse — but Congress.

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