Laptop Privacy at the Border?

From ACLU of Washington:

Washington Legislators Try to Protect Laptop Privacy at Borders

Written by Doug Klunder
There's been some media attention lately to the lack of privacy US citizens face when returning home from abroad, especially with electronic equipment such as laptops and cell phones. This situation is an entirely foreseeable outcome from several Supreme Court decisions, which have essentially declared the border to be a Constitution-free zone. Most notable is U.S. v Flores-Montano, decided a few years ago. The Court unanimously said it was OK for Customs officials to disassemble a car at the border -- with no suspicion of wrongdoing! It's hard to believe, but true: next time you drive to Vancouver, your car may be legally dismantled at the whim of a Customs agent.

Not surprisingly, Customs and Border Patrol (CBP) doesn't see any reason that authority doesn't also extend to looking at laptops, cell phones and iPods that travelers bring across the border. And it's a lot easier to snoop through a computer than it is to take apart a car, so there are a growing number of stories of electronic equipment being searched at the border for no identifiable reason. Not only searched, but copied -- letting the Federal government peruse all files at its leisure, and retaining those files indefinitely. We recently discovered that the reason the stories are growing is that CBP has changed its internal policy. Whether or not it was required by the Constitution, CBP had a policy for over 20 years of only reading personal material when there was suspicion of wrongdoing, and only copying it when there was probable cause of wrongdoing (a higher standard). But the reasonable suspicion requirement was dropped a year ago, and the probable cause requirement was also dropped in the past few months.

So now laptops are treated the same as cars -- available to be searched and copied simply at the whim of a Customs agent. Whether it's a letter to Aunt Sally, emails to your lawyer, proprietary business information or photos of your trip to a topless beach, don't expect to keep any secrets from Customs if it's in a file stored on your laptop, even if it's encrypted. For a good description, take a look at this Washington Post article.

The good news is that CBP doesn't exist in a vacuum. Even if CBP doesn't think there's anything wrong with looking at people's electronic lives on a whim, some legislators do--including legislators from Washington state. Senator Maria Cantwell has co-sponsored S. 3612 (link not yet available) and Rep. Adam Smith has sponsored H.R. 7118, both called the Travelers' Privacy Protection Act of 2008. They would require Customs agents to have a reasonable suspicion of wrongdoing before searching electronic equipment such as laptops, and would require them to obtain a warrant before seizing or copying files.

“The Bush administration has sought to undo over twenty years of legal protections by searching personal electronics without probable cause,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “We applaud the introduction of this legislation and call on Congress to act quickly on this crucial issue for travelers. In today’s world, laptops, cell phones and digital cameras are the storehouses for our most personal information. We cannot allow our privacy to be breached under the guise of border security.”

Let's hope this bill passes. It's only common sense to expect some modicum of privacy when innocently travelling for either business or pleasure. Even if CBP doesn't have that common sense, Congress can force them to get some.