Senate hearing asks why laptops are seized at borders

Most Americans don’t bat an eye at the prospect of a luggage search at the airport. But what if  a customs agent paws through your laptop, seizing and storing your personal information?

"It does happen," said Sen. Russell Feingold (D-Wisconsin) Wednesday morning at a Constitution, Civil Rights and Property Rights Subcommittee hearing on precisely those types of searches. U.S. Customs and Border Protection agents have discreetly searched travelers’ laptops at the country’s international airports for years, Feingold said.

And it turns out, for the time being at least, it’s all perfectly legal, even though the practice could compromise journalists’ confidential sources or destroy the attorney-client relationship.

Proponents of the searches emphasized at the hearing their importance to national security. "We know that terrorists carry information on their laptops," Sen. Sam Brownback (R-Kansas) said. However, most criminal cases stemming from the searches involve people caught at borders with laptops full of child pornography.

Larry Cunningham, the assistant district attorney of Bronx County, NY, told the subcommittee that searching a laptop is no different than rifling through a suitcase at an airport security point.

Indeed, that’s the direction the courts have tended to lean when presented with the issue.  Most recently, the 9th Circuit upheld laptop searches at borders, even those without a basis of suspicion, because they were deemed non-invasive — more like searching a suitcase than a human cavity.

But on the other side, critics say searching electronics increases costs for business travelers who may lose important data, or resort to keeping a secondary traveling laptop with less information on it.

Professor Peter Swire from the Moritz College of Law at Ohio State University called the policy a severe violation of computer security. It is ultimately a futile practice, he said, because advanced technology allows travelers to hide data from officials, anyway.

And Farhana Khera, the president and executive director of the San Francisco-based Muslim Advocates, expressed concern that government officials are using racial profiling to only seize electronic devices from travelers visiting Middle Eastern and South Asian countries.

Some in the legal community have argued in favor of making it tougher for authorities to search and seize electronic devices by requiring a standard of reasonable suspicion. That would mirror the basis required for the more invasive body cavity searches.

Feingold asked the Department of Homeland Security (DHS) to testify at the hearing, but DHS did not send a representative. Rather, the agency filed written testimony stating the agency’s "efforts do not infringe on Americans’ privacy."