WASHINGTON – Laptop searches at the border have sparked debate about how the government's broad powers to search international travelers should apply to electronic data.
Under current law,federal agents at the border can search electronic devices,copy data or seize a computer without probable cause.
During the first two weeks of August,40 people of the almost 17 million who crossed U.S. borders had their laptops searched,according to the Department of Homeland Security.
“Some people have had their stuff taken away for two or three months,” said Rep. Loretta Sanchez,D-Calif.,who introduced a bill to make searches of electronic devices more transparent. “It's incredibly inconvenient,and people weren't even aware it could happen.”
The Department of Homeland Security says those search powers allow it to enforce laws and stop terrorists.
“We've searched electronics as long as they've existed and are treating them like hard-copy materials,” said Amy Kudwa,a department spokeswoman. Department officials have said making an exception for electronic data would allow anyone to easily hide information when crossing the border.
Privacy and civil liberties advocates contend that laptops and other electronic devices shouldn't be subject to the same laws that govern paper. Additionally,no serious criminal or terrorist would be stupid enough to carry data across the border on a laptop when he or she could simply keep it online instead,said Tim Sparapani,senior legislative counsel at the American Civil Liberties Union.
Laptops and legal pads contain far different amounts of information and should be treated accordingly,Sparapani said. Laptops – which often store medical records,business proposals,thousands of e-mails and other personal documents – act as extensions of someone's home or office. As a result,searching a laptop has far larger privacy implications than reading someone's papers,argue many privacy advocates.
About 3 million people are referred to what the department calls “secondary screening” each year,which can include searches of electronic devices. The department doesn't track how many of those screenings include searches of electronic devices,how many devices are seized or how often data is copied from those devices,Kudwa said.
Three representatives have introduced bills attempting to deal with the controversy. Two bar the government from searching electronic devices without a reason. A third attempts to make such searches more transparent,but doesn't limit the government's search power.
- The first bill,called the Electronic Device Privacy Act of 2008,introduced by Rep. Zoe Lofgren,D-Calif.,would bar the government from searching electronic devices without a reason.
- The second bill goes further. Introduced by Rep. Eliot Engel,D-N.Y.,the Securing Our Borders and Our Data Act of 2008 would also require the department to post policies outlining how it handles and protects data copied from electronic devices. Each year,the government would record how many electronic searches were conducted,who was searched and what was found.
“You can find most of a person's life on their laptop,” said Joseph O'Brien,a spokesman for Engel. “It's just far more information about a person than you should have to give up.”
- The most recent bill,introduced by Rep. Loretta Sanchez,D-Calif.,would also force the department to collect search data,but wouldn't limit search powers. The Border Security Search Accountability Act of 2008 would also require more transparency,including publicizing the rules and notifying travelers of their rights during searches. Rep. Bennie Thompson,D-Miss., chair of the House Committee on Homeland Security,supports the bill. Sanchez is a member of the committee.
Customs and Border Patrol agents often find child pornography and files that violate intellectual property laws when searching laptops. In response to criticism of its search policy,the department listed three cases in which laptop searches turned up material linked to terrorism during the last three years. The files included “violent jihadist materials,” a video of an improvised explosive device being detonated and information about cyanide and nuclear material.