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Welcome back to the United States. Now let's see what's on your laptop

June 25, 2008 |  2:26 pm
Security screening at Baltimore-Washington International Airport

Authorities need a search warrant to get at a computer in your home, and reasonable suspicion that you're up to no good to search your laptop in other places (like if you're surfing bomb-making sites while using WiFi at a coffee shop).

But the rules change when you're crossing the border back into the United States. And that has raised concerns from business travelers, privacy advocates and some lawmakers about the vulnerability of the huge amounts of information people carry on their laptops and other digital devices.

The legality of the practice hinges around whether searching a laptop is the equivalent of looking in your luggage, or more like a strip search.

U.S. Courts have ruled, as recently as this spring in a case stemming from a search at LAX, that there's no need for warrants or suspicions when a person is seeking to enter the country because any "routine search" is reasonable under the Fourth Amendment. In effect, it's like luggage: anything and everything in your laptop, cellphone, BlackBerry or digital camera can be examined and copied by U.S. Customs and Border Protection agents.

So far, the agency, part of the Department of Homeland Security, has been vague about when and why it conducts those digital searches, how long it keeps the information and what is done with it.  Sen. Russ Feingold, a Wisconsin Democrat, wants to change that. At a congressional hearing he chaired on the issue today, he said:

"I guarantee you this: Neither the drafters of the Fourth Amendment, nor the Supreme Court when it crafted the 'border search exception,' ever dreamed that tens of thousands of Americans would cross the border every day, carrying with them the equivalent of a full library of their most personal information.... Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicion-less searches of Americans' laptops and similar devices go too far. Congress should not allow this gross violation of privacy."

Two leading privacy advocates at the hearing -- Lee Tien of the Electronic Frontier Foundation and Peter Swire of the Center for American Progress -- agreed with Feingold that the searching of laptops and other devices violates people's privacy. The EFF also has filed suit to get more information about the program.

Have you had your electronic equipment searched or seized at the border? We'd love to hear your story in the comments below.

The issue is a particular concern for businesses, which ...

... risk the loss of proprietary data when executives travel abroad, said Susan K. Gurley, executive director of the Assn. of Corporate Travel Executives.

After the California ruling this spring, the group warned its members and business travelers to limit the business and personal information they carry on laptops taken out of the country. Of the 100 people who responded to a survey the association did on the issue in February, 7% said they had been subject to the seizure of a laptop or other electronic device.

For lawmakers, it's not an easy issue. Feingold is considering legislation to prohibit "suspicionless searches" of electronic devices. But Sen. Sam Brownback, a Republican from Kansas, noted that the terrorist threat meant U.S. officials had to balance individual rights with protecting the nation.

"Terrorists take advantage of this kind of technology," he said. "As a legal matter, it seems clear to me that government officials do have a right under the constitution to search laptop computers and similar devices without probable cause or reasonable suspicion at the border."

As for whether rifling through the contents of devices is more like a luggage check or a strip search, legal scholars at the hearing were split. The courts have found that routinely examining people's possessions at the border is legal, but have ruled that there needs to be a higher standard for more invasive searches. So as people store more and more information on portable devices, lawmakers are starting to wrestle with when and how the government should be able to peek at that data.

-- Jim Puzzanghera

Puzzanghera, a Times staff writer, covers tech and media policy from Washington, D.C.

Photo: A Transportation Security Administration screener at Baltimore-Washington International Airport. Credit: Paul J. Richards / AFP/Getty Images

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