Believe it or not, but the 9th Circuit Court of Appeals recently upheld warrantless searches of people’s lap top computers by Department of Homeland Security Agents at the border. Under the decision, Agent had unbridled access to search laptop computers of people entering the United States regardless of whether they believed the individual had committed, was committing or would be committing a crime. In legalese we call that type of search one without “reasonable suspicion” or “probable cause.” It seems, however, that Congress is trying to better define the searches.
A new bill introduced to Congress last week reportedly limits the Department of Home Security, Customs and Border Patrol agents when searching your laptop, external hard drive or mobile device.
“I was deeply concerned to learn about the lack of protections individuals’ have when their electronic equipment is randomly seized,” Rep. Loretta Sanchez (D-CA), who introduced the bill, told Ars Technica. “With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information.”
Unfortunately, the Bill does not make the searches more difficult to conduct. The 9th Circuit Judges noted that precedent already allows searches of 1) briefcases and luggage, 2) a purse, wallet, or pocket, 3) papers found in pockets, and 4) pictures, films, and other graphic material. They had no hesitation to extend it to lap top computers. There were attempts to limit the decision to the protection of the territorial integrity of the United States. While such searches would not appear to be legal within the country, courts have long recognized the government’s right to “protect its territorial integrity” by controlling the material passing across its borders.
I’m having a difficult time with this. The Patriot Act was passed to obstruct terrorism but i have seen prosecutors bootstrap that law onto cases where there wasn’t even a breath uttered about terrorism. I wouldn’t doubt an ambitious prosecutor’s efforts to use the 9th Circuit case to justify a search within the territory.
For those of you traveling abroad … leave the lap top at home.