What's the federal government to do when it wants to snag someone's laptop and comb through their personal data, but pesky civil liberties won’t permit it? Wait until the person tries to cross the US border, that's what.
For years, Department of Homeland Security policy has allowed border patrol agents to confiscate and search travelers' personal property without any reasonable suspicion—a special exemption to Americans’ Fourth Amendment protection against unlawful search and seizure.
The law is meant to thwart terrorism and drug trafficking, but in the digital age when our laptops and smartphones are more of an extension of our private selves than a simple object like a suitcase, the border now also functions like a privacy-free zone where the feds can handily snoop on a target on a hunch.
Yesterday, circuit court Judge Edward Korman ruled to uphold the laptop border search law, dismissing an American Civil Liberties Union lawsuit that claimed suspicionless searches of personal devices violates privacy and has a chilling effect on free speech.
The suit was filed on behalf of French-American citizen Pascal Abidor in 2010, a then-grad student who was crossing the Canadian border on a train when his laptop was confiscated for 11 days by customs officers, who read his private chats and looked through his photos.
Korman's decision dealt a major blow to privacy activists. He not only ruled that the confiscation was justified by what agents found on Abidor’s laptop—photographs of Hezbollah and Hamas rallies in Lebanon—but that it would have been legal even if they found nothing, since the law doesn’t require any reasonable suspicion for cursory manual searches.
The judge tossed out the idea that digging through personal devices was a privacy invasion because officials take care to respect travelers' personal property and because so few electronic devices were searched at the border the risk was minimal. Homeland Security's Customs and Border Protection agency puts the number at about 15 a day.
Sounding somewhat like a Luddite, the judge went on to suggest that people could mitigate the risk of a overly intrusive search by just leaving the laptop at home when traveling internationally, and that it "would be foolish, if not irresponsible" for globetrotters to keep sensitive data on their devices.
Though the lawsuit was filed three years ago, the decision comes at a time when the public is already skeptical of the US government's Big Brother surveillance. It's “part of a broader pattern of aggressive government surveillance that collects information on too many innocent people, under lax standards, and without adequate oversight,” ACLU lawyer Catherine Crump said in a statement yesterday.
But what what’s most unsettling about the border search policy is that it gives federal agents a way to target people as it pleases, even if there's no reason to suspect they pose a risk to national security. Law enforcement can flag a "person of interest" long before they travel so customs agents are on the watch. And targets can be searched legally at the border even when no other court would approve it.
That's what happened last year in the case of David House, whose laptop was taken for two weeks at the airport because he was affiliated with a group supporting hacktivist Jeremy Hammond. No criminal evidence was found on the machine—the search was presumably inspired solely because of House had political leanings the government didn’t appreciate.
In that lawsuit, the court again rubber-stamped the border search law, but did add in a written statement it wasn't so sure the search wasn't invasive, since political inclinations aren't just cause for the government to go rifling through someone's private data. District Court Judge Denise Casper wrote that the government can’t “target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border.”
The ACLU stated it was disappointed in yesterday’s circuit court's ruling, and hasn't decided whether or not it will appeal the decision.