Unless You Got Probable Cause
The 9th Circuit Court of Appeals reaffirmed its ruling on USA v Arnold this past Friday that Customs and Border Protection agents are free to seize your laptop at the border without probable cause. On July 10 the 9th Circuit denied the petition for en banc review of their April 21 decision. So, as it stands today, Customs can randomly grab anyone at the border; seize their laptop, and demand passwords and encryption keys as a pre-condition to entering the country. And who knows when you will get your computer back? The dissonance between this policy and my understanding of our basic values of personal privacy and protection from unwarranted searches strikes me as very loud.
At a minimum, you would think this search and seizure policy violates our Fourth Amendment rights protecting us from unwarranted search and seizure. And it certainly limits our privacy. Beyond that, as Peter Swire (Senior Fellow at the Center for American Progress) writes, the practice also sets a bad precedent that other, less friendly countries will emulate. Further, he argues that the policy severely harms to personal privacy, free speech, and business secrets; and creates a disadvantage to the US economy by discouraging tourism. Still, the courts were not swayed by Swire.
As a former small business owner who relied heavily on the use of my laptop computer, I can understand the worries of business travelers. It is not just the content of the computer that is at risk (that could be backed up on an external hard drive), but it is the use of the computer itself. I depended on my laptop, the software on it, the links in my browser, and the access it gave me to the internet to conduct business. As Mark Frauenfelder reported in February on Boing Boing, some business travelers have been waiting over a year to get their laptops back. For many small business owners, that would be devastating to their bottom line.
As a long-time political science professor, the idea of the government limiting our privacy in such an unwarranted way makes me cringe. Where is the compelling state interest? Is this really the best way to secure the borders? I understand the need to secure the border from threats to the nation, but I believe that we need to secure our Constitution, as well. Random searches strike me as a bad way to do this. Imagine your grandmother caught in a random search snare while smiling terrorists slip by unhindered. A smart policy is one that is based on probable cause, not random searches. Our agents at the border are well-trained to spot suspicious behavior. That is how they should focus their searches. Random searches remove human intelligence and training from the process. That makes no sense.
Now that the court has made its ruling, it is imperative that we push Customs and Border Protection to conduct and publish a Privacy Impact Assessment, and then use that assessment to enact meaningful safeguards to protect the privacy and security of innocents entering the country. The Center for American Progress Action Fund, under its new I Am Progress advocacy program, has launched a campaign called Hands Off My Laptop to pressure CBP to do just that.
In the final analysis, if the government is going to limit our privacy, it has the responsibility to understand the impact of its actions, share that information with us, and implement needed safeguards.
For additional information about this issue, see:
Seizing Laptops and Cameras Without Cause, by Alex Kingsbury