WASHINGTON, D.C. – In yet another clear violation of the Constitution, the Department of Homeland Security (DHS) has issued new regulations permitting two of its agencies, the U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), to search international travelers' laptops, flash drives, connected or unconnected hard drives, iPods, pagers, beepers, audio and video tapes, as well as "all papers and other written documentation" that the travelers may be bringing into the U.S., without warrants and without the excuse that the person being searched has any connection to terrorism.
"It's the most egregious Fourth Amendment violation that I've seen manufactured by any governmental regime," observed First Amendment attorney Luke Lirot, "and I'm sure this means that our government has now far surpassed the Secret Police of the Eastern Bloc countries that we used to be afraid of."
Travelers are already required to remove their laptops from their travel bags and pass them separately through the X-ray devices at airport security checkpoints, but this new escalation will allow Transportation Security Administration (TSA) agents to search through any files on the laptops (or hard drives, flash drives, PDAs, cellphones, books, etc.) and, if they deem it necessary, seize such devices or papers for off-site language translation, data decryption or simple copying of an indefinite period of time.
"CBP is responsible for ensuring compliance with customs, immigration, and other Federal laws at the border," reads a document titled "Policy Regarding Border Search of Information," issued on July 16. "To that end, officers may examine documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices. These examinations are part of CBP's long-standing practice and are essential to uncovering vital law enforcement information. For example, examinations of documents and electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws."
Ironically, the statement adds, "Notwithstanding this law enforcement mission, in the course of every border search, CBP will protect the rights of individuals against unreasonable search and seizure."
That right is contained in the Fourth Amendment to the Constitution, and reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [emphasis added]
Exactly how the PCB's "long-standing practice" can be reconciled with the absolute requirement that a judge sign off on a warrant before a person's person or possessions can be searched, even if such searches "are essential to uncovering vital law enforcement information," is not covered in the new policy.
"Quite honestly, the whole basis of searching luggage is for the instrumentalities of terrorism like bombs or cutting instrument of any kind, but this is ridiculous," said Lirot. "But this is different than looking through somebody's luggage because there may be contraband there of a transported nature; somebody's computer is the equivalent of someone's mind or diary, and the expectation of privacy in a computer vastly exceeds the expectation of privacy in your luggage."
And these illegal searches may not stop with a traveler's possessions. The Telegraph (UK) has reported that under a deal struck between the United States and the European Union's parliament, "US officials can also potentially look at travelers' credit card and email accounts."
After seeing the DHS's policies at a hearing before a Senate Judiciary Subcommittee hearing last April, Sen. Russ Feingold declared, "I am more convinced than ever that legislation is needed in order to protect law-abiding Americans from this gross violation of their privacy. I intend to introduce such legislation soon." Sadly, such legislation has yet to be introduced.
But while iPod and cellphone owners may need to worry whether the music and/or videos saved on their devices may cause charges to be brought against them if discovered by a DHS search, adult content producers should worry even more.
"Considering the difficulties that courts and law enforcement agencies have in trying to identify what is or is not obscene because of the unusually distinct post hoc obscenity test, it horrifies me to think what some untrained TSA guy that was making salads a week ago is going to do when he runs across sexually explicit material that's presumptively protected when he obviously has no idea about what is or is not the [local] community standard," Lirot said. "What if I download something for my own personal viewing under Stanley v. Georgia [the Supreme Court decision legalizing private ownership of obscene material]? I have the right to possess it, and if I download something in Amsterdam that's not obscene there, and it's not obscene where I live; then what happens with the TSA or whoever Homeland Security assigns the obligation or the burden of having to look at this at an airport that I'm passing through on my way into the country? If I'm allowed to possess obscenity and they come across that, what does that do relative to the community standards, if I'm flying through Miami or Dallas on my way to Seattle?"
"To me, there's no possible way to reconcile this kind of warrantless search with the presumptive protections regarding First Amendment materials, materials that may be sexually explicit but not obscene, of which I'd say the vast majority are," Lirot continued. "It just seems to me that there's no possible way to justify this kind of invasive search for any legitimate purpose. I can understand them going through luggage – or even my shoes – to look for a bomb, but this, to me, has absolutely no legitimate explanation. I mean, do they think they're going to find plans on how to make a pipe bomb? Whatever speculative benefit might be derived relative to a governmental interest is so vastly outweighed by the invasion of privacy and loss of civil rights, I can't find any legitimate reason to think it's even remotely worth consideration."
It is likely that the American Civil Liberties Union or some similar organization will mount a legal challenge to this policy, which has already been approved, albeit in a more limited form, by the Ninth Circuit Court of Appeals, in the case of Arnold v. U.S., where the so-called border exception to the Fourth Amendment's prohibition on unreasonable searches applied not just to suitcases and papers, but also to electronics.
Until then, travelers whose papers and electronics are seized may want to be extra-cautious about what they physically carry into the country – and to have their attorney's phone number close at hand.