- The Washington Times - Monday, June 30, 2008

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.

CBP officials warn that exempting laptop computers, cellular phones, digital cameras and other electronic devices from routine searches would make it easier to smuggle pornography, terrorism plans or other dangerous or illegal digitally recorded material.

They note that laptop searches led to several child pornography convictions and revealed violent jihadist propaganda, information about nuclear weapons technology and video of the detonation of improvised explosive devices. They said this evidence helped keep terrorist suspects from entering the country.

The ruling in April by the 9th U.S. Circuit Court of Appeals upholding CBP’s search authority stemmed from the child pornography conviction of Michael Arnold, who was arrested at Los Angeles International Airport in 2005 while returning from the Philippines with compact discs that contained photographs of adults molesting children.

Another laptop search led to the apprehension of Xuedong Sheldon Meng, a Canadian national convicted of stealing weapons system information from an American company and attempting to sell it to the People’s Republic of China, violations of the Economic Espionage Act and the Arms Export Control Act.

Mr. Feingold insisted that the ends do not justify the means.

“Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicionless searches of Americans’ laptops and similar devices go too far,” he said.

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Judiciary Committee, echoed Mr. Feingold’s call for more safeguards against abuses of power by the Department of Homeland Security, which oversees CBP.

“The administration and the department’s use of this power must be held to a standard consistent with our constitutional values,” he said. “Where there are no constitutional safeguards, the environment becomes ripe for abuses, including racial, religious and ethnic profiling. And by many accounts from business travelers and others, these practices are occurring.”

CBP Deputy Commissioner Jayson P. Ahern said officers follow strict procedures and policies to protect personal information, comply with laws such as the Uniform Trade Secrets Act, and prohibit unauthorized disclosure of confidential information obtained in searches.

“It is important to understand that CBP typically encounters well over a million travelers every day and is responsible for enforcing over 600 federal laws at the border,” Mr. Ahern said in written testimony submitted for the hearing, which neither he nor other administration officials attended.

“CBP does not have the resources to conduct searches on every laptop or cell phone that pass through our ports of entry, nor is there a need to do so,” he said.

“When we do conduct a search, it is often premised on facts, circumstances and inferences which give rise to individualized suspicion, even though the courts have repeatedly confirmed that such individualized suspicion is not required under the law,” he added.

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