Senators Question Border Laptop Searches

— -- Two U.S. senators called on U.S. Customs and Border Protection (CBP) to back off its assertion that it can search laptops and other electronic devices owned by U.S. citizens returning to the country without the need for reasonable suspicion of a crime or probable cause.

Senators Russell Feingold, a Wisconsin Democrat, and Patrick Leahy, a Vermont Democrat, both urged CBP to reconsider its policy that apparently has lead to frequent searches of laptops, digital cameras and handheld devices at borders.

"If you asked [U.S. residents] whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs, and examine the Web sites they have visited, all without any suspicion of wrongdoing, I think those same Americans would say that the government has absolutely no right to do that," said Feingold, chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights. "And if you asked him whether that actually happens, they would say, 'not in the United States of America.'"

Two witnesses at a hearing before the subcommittee Wednesday described widespread CBP searches of electronic devices at borders, with data copies and devices sometimes confiscated for weeks. One Muslim executive at a U.S. tech vendor has been subjected to border interrogations at least eight times since early 2007, said Farhana Khera, president and executive director of Muslim Advocates.

Other travelers have been asked why they are Muslim, were questioned about their views of U.S. presidential candidates and had laptops and cell phones searched or confiscated, Khera said. "Innocent Muslim, Arab and South Asian Americans from all walks of life have had their electronic devices searched by CBP agents, or have been interrogated by CBP agents ... all without any reasonable suspicion that the individuals were engaged in unlawful activity," she said.

In a February survey of its membership, the Association of Corporate Travel Executives found that 7 percent said they've had electronic devices seized at the U.S. border, said Susan Gurley, executive director of the trade group. It can take weeks to have those devices returned, and the seizures can disrupt the owners' work and require companies to buy costly replacements, she said.

Half of the survey respondents said a seizure of an electronic device could damage their standing within their companies, Gurley said. "These devices constitute the offices of today," Gurley said.

But other witnesses at the hearing suggested laptops should be treated no differently than luggage, which CBP can search without reasonable suspicion or probable cause. U.S. courts have recognized that there's a less restrictive standard for "routine" searches and seizures at U.S. borders than police searches within the nation, said Nathan Sales, a law professor at George Mason University and former official at the U.S. Department of Homeland Security.

Searches of electronic devices at borders have caught several child pornographers and can be used to prevent terrorist attacks, he said.

CBP should be more open about its electronic search policies, Sales said, but U.S. courts have recognized no difference between searches of luggage and of laptops. "The privacy protections we enjoy shouldn't depend on whether we store our information on paper or in the digital world," Sales said. "Officers can search mail, they can search address books, they can search photo albums at the border with no suspicion at all. Why should the rule change when we keep our correspondence, our contacts or our pictures on a laptop?"

Senator Sam Brownback, a Kansas Republican, agreed that CBP needs more authority to conduct searches at the border than other law enforcement officials have inside the U.S. Only in a few cases, such as strip searches, are CBP officials required to have suspicions of illegal activity, he noted.

"I hope we can go through this on the basis of protecting an individual's rights, but also looking at trying to protect the country," Brownback said.

However, Brownback said he would not want his BlackBerry searched by border agents.

Lee Tien, a senior staff attorney with the Electronic Frontier Foundation (EFF), acknowledged that border agents have more power to conduct searches than internal U.S. police. But searching and seizing laptops, which often contain an "autobiography" of their owners, should be considered unreasonable and invasive under the U.S. Constitution's Fourth Amendment banning such searches, he said.

"EFF does not dispute that the Fourth Amendment works differently at the border," Tien said. "But 'differently' does not mean 'not at all.'"