Planning a trip abroad? If so, you might want to reconsider taking your laptop or BlackBerry with you. If you do, and if you then want to bring it back to the U.S., keep in mind Uncle Sam’s agents are authorized to inspect and detain it, and copy any information stored in it. Incidentally, the government need have not one iota of suspicion you are doing anything wrong in order to exercise such sweeping power.
The tremendous reach of this federal policy, reaffirmed as recently as last month by Homeland Security Secretary Janet Napolitano, traces to our county’s founding. A premise of national sovereignty once we severed our ties to the British Crown is the power of the nation to protect its borders. Federal courts have long allowed the government the broadest of powers to inspect people and goods entering the country. Until recently, however, this so-called border power was generally understood to mean conducting physical inspections of a traveler’s belongings — looking in luggage and carry-on bags to see if a person was trying to sneak in contraband.
In earlier times, the government also relied much more heavily than nowadays on customs duties for its revenues, and the number of offenses for which federal agents were responsible was far fewer. As such, it was difficult to fault customs agents for conducting brief physical inspections of travelers’ luggage.
Unlike customs agents in the post-Revolutionary War era, however, the jurisdiction today of federal law enforcement agents encompasses literally thousands of criminal and civil offenses, involving controlled substances, firearms, large amounts of cash, agricultural products, Cuban cigars, pornography, environmental and endangered species offenses, human rights violations, various financial instruments, intellectual property and copyright crimes, espionage, terrorism, tax evasion and music piracy.
Obviously, evidence of such activities can be stored on laptop computers and other electronic devices. Hence the keen interest on the part of the Customs and Border Protection (CPB) and the Immigration and Customs Enforcement (ICE) to extend government’s ancient power to look for physical contraband, to virtually any electronic device.
Modern-day electronic devices — not just laptops, but cell phones, BlackBerries, cameras, iPhones, iPods, computer discs, DVDs, and anything else capable of storing data — have become treasure troves of potentially valuable information. Not surprisingly, the government has vigorously asserted its power to extend physical border inspections to include all manner of electronic scans.
According to the most recent government “directive” on this subject, issued Aug. 25, a CPB or ICE agent “may review and analyze” any “information encountered at the border” (which extends to ports of entry such as Hartsfield-Jackson International Airport), and may do so “with or without individualized suspicion” that the traveler may have violated anything wrong. Any electronic devices singled out for inspection can be shared with other law enforcement agencies. The items also can be retained for however long the government needs to conduct as thorough a search of the device as it deems necessary. Magnanimously, the government does promise to make arrangements to later return the device(s) to the owner.
The huge expansion of the universe of possible offenses for which an individual can be charged, coupled with the massive increase in the amount of information that can be stored on even the cheapest of modern electronic devices, has caused many privacy advocates and civil libertarians to question the propriety if not the constitutionality of this vast expansion of the government’s “border search” power. In the absence of legislation placing reasonable limits on this power, the 1,000 such searches just of laptops the government said it has conducted in the last year, will expand exponentially.