Unless You Got Probable Cause
[huffingtonpost.com] 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:
Another Scary Government Program: the Government Gets to Seize Your Electronic Gear at the Border, by
Robert Schlesinger
Seizing Laptops and Cameras Without Cause, by Alex Kingsbury
Source: http://www.huffingtonpost.com/alan-rosenblatt/keep-your-hands-off-my-la_b_113374.html
