Is that a Bomb in your laptop or Bad Speech? Laptop Searches at the Border

I am attending an international conference in Washington, DC this week. I received an email containing this alert: “There is recent controversy regarding the search and seizure of laptops… by border and customs agents for people entering the US from abroad. This applies to US citizens and non-citizens. Agents seem able to make arbitrary seizures of laptops and these devices for indefinite periods of time based upon any criteria they choose…What does this mean? It is recommended that all laptop data be backed up in a secure location before you travel. Further, sensitive research data should be encrypted, and references to research participants should be encoded in such a way as not to identify or harm them. Consider the practical aspects of having your laptop seized at the border. What will you do if your laptop is seized and kept for an indefinite period of time (days, weeks, or even months)?”
Another email that I have seen on this issue is from an attorney concerned about traveling to Canada with attorney- client privileged material and whether to allow the border agents to see it and if they are to see privileged material, does this sharing breach the ethics rules. These e-mails come close in time to a local related laptop seizure at Detroit international airport. On November 7, Greg Krupa of the Detroit News wrote an article “Airport Laptop Seizures Angers Muslims” on an incident that occurred with Imam Elahi of Dearborn Heights. Imam Elahi was returning from a trip to his native Iran when he was subject to secondary inspection. His laptop was seized and searched away from his sight. It was returned to him with a damaged hard drive. What I found most troubling is that he was questioned about an article on his hard drive. This questioning about content usually occurs in countries like North Korea and Cuba, not the United States.
Ellen Nakashima of the Washington Post wrote an article on the issue of laptop searches on August 1, 2008 entitled “Travelers' Laptops May Be Detained At Border-No Suspicion Required Under DHS Policies.” Ms Nakashima wrote under DHS policies “federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies” and that “officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons.” Agents can seize and search "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes.” The search and seizure power also applies to “all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "
Of course there is a need for security at international borders and the government has an intrinsic sovereign power to search those coming into the country. Federal courts have set border searches and seizures as an exception to the fourth amendment requirements- border searches are different because they occur at the border. However, if safety and smuggling of contraband are the issues and not bad speech, what the border agents need to know then is that the laptop or other electronic devices international travelers have are not in fact a bomb or hiding contraband. They can tell if a laptop is a shell or a bomb by simply turning it on. I personally have travelled overseas a number of times and had my laptop put through the scanner as well as infrequently turned on and off to check that it is in fact a functioning laptop and not a bomb. I had no problem with that. But for an agent to turn on a laptop or other electronic device, without probable cause or reasonable suspicion, and read articles to search for content protected by the first amendment, this is a completely different matter.


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