Government can Seize your Laptop at the Border
Via Reuters: U.S. agents can seize travelers’ laptops: report
U.S. federal agents have been given new powers to seize travelers’ laptops and other electronic devices at the border and hold them for unspecified periods the Washington Post reported on Friday.
Under recently disclosed Department of Homeland Security policies, such seizures may be carried out without suspicion of wrongdoing, the newspaper said, quoting policies issued on July 16 by two DHS agencies.
Agents are empowered to share the contents of seized computers with other agencies and private entities for data decryption and other reasons, the newspaper said.
DHS officials said the policies applied to anyone entering the country, including U.S. citizens, and were needed to prevent terrorism.
But, of course, there need be no suspicion of wrong-doing. Lovely.
One gets the impression sometimes that the goal of the US government of late is to make travel as unpleasant as possible in general and to specifically make it less likely that tourists and businesspersons from abroad will want to come to do business in our country.
Of course, it is a all good and justifiable because it is “needed to prevent terrorism” so it must be okay, yes?
So, if i go abroad with my laptop or other electronic device I risk it being seized upon my return for an unspecified amount of time on the whim of a DHS employee?
The WaPo story (Travelers’ Laptops May Be Detained At Border) notes:
The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”
The policies cover “any device capable of storing information in digital or analog form,” including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover “all papers and other written documentation,” including books, pamphlets and “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’ “
This is remarkable and alarming given that amount of private data that one might carry on these devices, let alone things like business and research materials that could be lost because DHS wants to look at your thumb drive.
The story continues:
When a review is completed and no probable cause exists to keep the information, any copies of the data must be destroyed. Copies sent to non-federal entities must be returned to DHS. But the documents specify that there is no limitation on authorities keeping written notes or reports about the materials.
This is unconscionable and unjustifiable–the government is asserting the right to look into private materials to then determine if there is probable cause to keep it? How this can be be in keeping with Fourth Amendment protections is beyond me.
The fact that this policy was a secret until it was forced into the light of day by advocacy groups makes the whole situation even more onerous.
The full policy can be reviewed here [PDF].
UPDATE (James Joyner): I agree this policy is unconscionable. On its surface, however, it’s nothing new. This sort of thing — and worse — has been routine for decades in prosecuting the drug war.
From FindLaw:
”That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.” 87 Authorized by the First Congress, 88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. 89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 90 Terry protections as to the length and intrusiveness of the search do not apply. 91
_______________
[Footnote 87] United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad).[Footnote 88] Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.
[Footnote 89] Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971); Almeida- Sanchez v. United States, 413 U.S. 266, 272 (1973).
[Footnote 90] United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (approving warrantless detention incommunicado for more than 24 hours of traveler suspected of alimentary canal drug smuggling).
[Footnote 91] Id. A traveler suspected of alimentary canal drug smuggling was strip searched, and then given a choice between an abdominal x-ray or monitored bowel movements. Because the suspect chose the latter option, the court disavowed decision as to ”what level of suspicion, if any, is required for . . . strip, body cavity, or involuntary x-ray searches.” Id. at 541 n.4.
It shouldn’t be surprising (even though, somehow, it always is) when a new justification is found.
The DHS seems to be doing more to terrorize us than any external enemies.
The War on Drugs has been losing for a long time. We need to stop it.
On a more serious note, Canadians do have secret plans to spread Dead Man donut shops all over the US. This must be stopped at all costs.
Steve
At the very least, they need to have the capabilities to quickly make copies of all digital and analog storage. There is no reason for them to detain your laptop when they could copy it’s contents in a few minutes. The same goes for other mediums too, they need a VHS copier, photo copier, etc. I’m not saying I like the idea of them doing this, but they can at least try not to make it such a hassle.
Driving from Texarkana, Texas, into Texarkana, Arkansas, is no big deal.
Driving from El Paso into Juarez is.
National borders are still meaningful, precisely because there are things governments should and do have the right to do on the border which they can’t do on either side of them.
You want to avoid the scrutiny? Don’t cross the border.
You want to cross the border? Accepting the scrutiny comes with that.
Sure, everyone wants border security to be maximally effective at stopping bad things and minimally intrusive as to everything else. That’s a nice goal, but it’s rather easier said than done. And usually it’s the same self-styled civil libertarians who simultaneously decry “profiling” while complaining that security personnel are doing body cavity searches on grandmothers. The fact is that there are competing, entirely incompatible concerns here, with trade-offs to be made that can never satisfy everyone.
(Re-reading that, I prolly ought to have said, “Driving from Juarez into El Paso.”)
So the 4th amendment doesn’t apply on US territory on the border?
Beldar,
I don’t understand the notion that just because I travel out of the country that the government ought to have the right to violate my privacy. If they have probable cause, fine. But just because I left the country? To me that is un-American (it is certainly un-democratic) whether the courts have found it be acceptable or not.
The notion that I should have to stay home just to protect myself from my own government is, to me, insulting.
Dr. Taylor: Show me where in the Constitution it says that you have an right to leave and return from the U.S. without any inconvenience.
You don’t have to stay home. You’ve got 50 states to roam among between which there are no security measures. (I’m not sure about borders with territories, e.g., Puerto Rico.) And indeed, leaving generally isn’t where you encounter border security checks (as distinct from airline security checks).
You seem to have the notion that you wear your privacy rights like a suit of armor, and they follow you wherever you go. In fact, the moment you step into, say, Juarez, those rights evaporate: The Mexican police will be very unimpressed with your assertion that you’re protected by the Fourth or Fifth or Eighth or any other Amendment to the U.S. Constitution.
(That’s notwithstanding the fact that your rights under the U.S. Constitution may continue to restrain the U.S. government’s dealings with you abroad. And post-Boumediene, it seems like the U.S. Constitution gives some as-yet-undefined bundle of rights to everyone everywhere that they can enforce, via stateside petitions for habeas corpus, against the U.S. government, at least if it’s the U.S. is holding them in any sort of custody.)
Once you’re back in the U.S., then your magical suit of rights-armor coalesces back around you.
But there’s nothing other than your own fancy and whim that makes your border-crossing rights inviolate. Your fancy and whim is inconsistent with what is, and always has been, actual American law on border crossings.
With due respect, the problem is with your mode of thinking, which — as I expressed in my original comment — considers only one side of the equation, and ignores your fellow citizens’ interests in ensuring that neither you nor others cross into America with contraband or in the process of committing offenses here. Your notion of your personal liberty butts into my notion of collective liberty from crimes and dangers; there’s a clash there that can’t be avoided; all that can be done is an attempt to balance those interests in some reasonable way.
I’m sorry you feel insulted. I feel comforted — not, obviously, because I’m worried about you in particular, but because I’m worried about the criminal or terrorist who’s otherwise indistinguishable from you or me as he crosses the border, but the whose laptop, when examined, leads to the information that puts the criminal or terrorist in jail.
right of privacy? I wish we wouldn’t always try to find ways to Constitutionalize our arguments.
The policy issue here seems to me the Star Wars assumption of technology. Remember where information had to be transmitted by the rebels by physically passing data via robot. If only some means to transfer technology electronically existed!
Show me where in the Constitution the government is empowered to suspect me of a crime just because I left the country.
Indeed, the closest the document comes to any of this is “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That seems to be more on my side of the argument than yours, but as James notes, that doesn’t mean that the courts necessarily agree with me.
The bottom line with your position, and where our fundamental difference lies on this and other issues–I have no problem with the government seeking to protect us, I just think that they need to have some evidence to use in seizing private property (even the private property of non-citizens who are otherwise engaged in regular activities).
The notion that they should be able to do whatever they want just because they are “protecting” us is highly problematic, especially since the government, in general, is not known to be the most efficient or most accurate of entities.
This kind of thing always gets me: conservatives will decry the ability of the feds to deal with social welfare policy and the like, and yet somehow think that they will be quite good at security policy, especially the kind that requires guesswork.
And, just to make sure I am clear, I am not insulted by your comment, but simply by the overall notion.
Can the government search people crossing the border for drugs, food products, goods subject to duties and unregistered firearms? Can vehicles be searched for people entering the country illegally? I think the answer is clearly yes and without probable cause that the individual may be seeking to do something illegal.
I don’t think the issue of searching for illegal materials at the borders is covered by the Fourth Amendment and from my p.o.v. searching at the borders is less disruptive of civic unity than say cop cars driving through cities with infrared detectors pointed at residences.
That said, whether it is a cost-efficient secruty procedure seems very doubtful to me.
I do, in fact, find it insulting to be treated like a criminal when I’m trying to re-enter my own country and have done nothing, save going on vacation or business travel, that should arouse suspicion.
Not only am I a passport-holding U.S. Citizen with no criminal record, I’m a second generation combat veteran, second generation Top Secret security cleared, individual. There’s not even reasonable suspicion, much less probable cause, that I’m an Islamist terrorist or smuggling cocaine.
So, yes, I find it insulting to be subject to hours of inconvenience and intrusive questioning to demonstrate that I’m not a danger to my country’s security.
Dr. Taylor wrote, “Show me where in the Constitution the government is empowered to suspect me of a crime just because I left the country.”
It starts here (italics mine):
The bottom line is that inside the U.S., “we the people,” through our elected representatives, have sovereignty. And at our direction and with our approval, the law enforcement agencies established, funded, directed, and overseen by those elected authorities maintain, in general, a level of security and domestic tranquility in which we calibrate the tradeoffs between privacy and security at particular levels. One important level — so important that, as you point out, it’s written into the Fourth Amendment — is the right to be secure against unreasonable searches and arrests. And our internal domestic laws are calibrated to protect those interests, with the requirement of warrants, or for certain circumstances where warrants are impractical, court-made requirements like a showing of “exigent circumstances” and “probable cause.” We sometimes let the demonstrably guilty walk away in order to protect the privacy interests served by those rules.
But outside our borders, we don’t have the sovereignty or the practical ability to maintain those same levels of security and tranquility. And there are lots of people who wish us harm who are outside our borders. The borders are, therefore, the logical place at which we should crank up security — subjecting our citizens (including, yes, even decorated veterans of our military) to invasions of privacy that we wouldn’t and don’t tolerate internally.
No one’s every promised you anything different or better than that. You have no reasonable expectation of privacy as you’re crossing the border. Maybe you wish you did, which would require a major change in our laws. I don’t join you in wishing that, because especially post-9/11, I think border security is a legitimate concern that ought not be short-changed merely to promote anyone’s personal convenience.
First off, I find the preamble argument to be amusing in this context, as it is it precisely the kind of argument used by welfare state liberals to justify any number of programs that are not explicitly stated in the Constitution, and to which conservatives usually cry foul in terms of that reasoning (although it may not be the case for you in regards to said policies). Yet, now that very argument is being used to promote increased police powers by the federal government. Really, the “we the people” argument is basically one that says that the elected government can do whatever it wants, so long as the elected representatives of the people vote for it regardless of other institutional strictures. It is a very simplistic popular sovereignty argument that really vitiates any notion of an established constitutional order. Are you really wanting to make that argument?
Why it is so unreasonable to suggest that there ought to at least be a reason, apart from travel abroad, to allow the government such broad latitude is beyond me. We seem to have allowed 9/11 to bring to the fore this notion that generalized fear itself is a sufficient reason to violate people’s rights.
This is beyond drug-sniffing dogs or looking in my bags to make sure I don’t have cocaine in my dirty underwear, or even a metal detector to see if I am packing heat. To seize a laptop is to potentially take into possession personal financial, legal (potentially privilege, in fact) or other documents that the government has no business obtaining unless there is a reasonable suspicion of a crime. Further, it could mean the inappropriate access and distribution of that of that information by persons who have no right or need to it. Really, it allows the government to go on a fishing expedition into ones affairs for no reason whatsoever save “security” because I had the temerity to leave the country.
BTW-pursuant to an issue in one of your other comments: when did I claim that I would be able to assert US constitutional rights to the Mexican authorities? I fully understand that my legal rights, such as they are, are quite different when I am elsewhere. But of course, that is makes elsewhere elsewhere, so to speak. I would like to think that the USA is, in fact, as different in a positive sense as we like to claim that she is–however, if the bottom line is that I should expect no better treatment in the US than I do in a developing state of marginal democratic quality with a known law enforcement corruption problem, then I guess America isn’t all that she is cracked up to be, which is rather sad.
Please note, by the way, that I’m not arguing that the DHS in general, nor that any particular employee thereof, has infallibly good judgment in applying their rules and procedures, nor that their rules and procedures are optimal. I’m not arguing that they ought to seize every laptop, either. (And you’re not objecting based on your laptop having been seized, but rather on the possibility that it might be.)
My argument is simply that it ought to be within the government’s power, as part of border security, to do this sort of inspection and, sometimes, impoundment (not permanent seizure) for more detailed inspection.
I’d be entirely in favor of rules and procedures that encouraged DHS employees to make such rational decisions as to let (a) U.S. citizens who (b) are former military officers (even first generation) with (c) security clearances who’ve (d) just been vacationing (e) somewhere touristy (not, say, Pakistan) to cut immediately to the front of the line and proceed on their merry way, laptops in hand.
My strong hunch is that a lot of the people who fit categories like that, or even close to that, get targeted (if at all) based on policies which encourage more randomness in inspections, which in turn are prompted by purported civil libertarians who oppose “profiling.”
The preamble is where I said this all “starts” because this isn’t about hypothetical defense, but very real defense — as real and granular and gritty as the ashes of the dead who perished in the collapse of the World Trade Center buildings. This isn’t touchy-feely. It’s about catching, or failing that, keeping out, people who want to kill you and me and our fellow citizens.
And of course, the reason I said that “it starts” with the preamble is because pretty much the rest of the Constitution is designed to create the mechanics and working rules of the three coordinate branches of government who each have roles to play in, among many other policy matters, border security. You’re quite right to refer to “police powers,” but that’s a term that I know you know has a broader meaning than just describing what a cop on the beat can or can’t do.
You keep assuming that you have “rights” here that are being violated, as in the phrase “reason to violate people’s rights.” You have no such rights. No one ever has, not when crossing the border. Of course if you start from the premise that you do have such rights, it’s easier to get to the conclusion that the violation of those “rights” is outrageous. But entering the United States, even for its citizens who’ve left it temporarily, is a privilege, and it has always come with the condition that you submit to such security measures as the country, through its elected officials, have seen fit to legislate.
You say this permits fishing expeditions “for no reason whatsoever.” To the contrary, it’s fairly easy to establish that many people, including sometimes American citizens returning, do so as part of the commission of crimes or carrying materials that are illegal to possess here. It may not seem to you to be a sufficient reason. But a majority of your fellow citizens disagree, or the laws and policies would be changed.
And you continue to ignore entirely in your arguments the fact that the world outside is fundamentally different that the world inside our borders. We aren’t sovereign there. Bad guys can and do find places outside our borders from which to craft and then execute plans to create havoc inside them.
America was complacent about its border security before 9/11. When we examined how that tragedy happened, border security was by far the single most obvious place where stricter procedures enforced aggressively might have prevented the whole thing. And it’s the place where future incidents can be prevented most efficiently, without having to abrogate our internal domestic rights on an every-day basis.
If you choose to go into a business that requires you to cross America’s borders frequently, you make that choice knowing that border security today is tighter, and more burdensome even to the entirely innocent, than it used to be. If you choose to vacation outside the U.S., it should, again, be with that knowledge. If you carry a laptop, you ought to back up all the data on it, so that you can minimize the inconvenience if you’re deprived of it for a time while it’s impounded. That’s life the way it is, in the very dangerous and non-utopian world in which we actually live.
By your logic, the government ought to be able to seize laptops in homes within the US, since much of the planning that lead to the 9/11 attacks took place within the US itself. After all, we know that a lot of crimes are planned and executed within our borders.
Indeed, is there any evidence whatsoever that laptops containing the 9/11 plans came into the US with those who would become the hijackers?
Indeed, it would help your case if you had any actual evidence, beyond simple conjecture, that seizing the laptops of citizens for no other reason than that they have been out of the country, actually saved lives.
Your argument is predicated on facts not in evidence.
And yes, US citizens have rights by our very existence as US citizens. Indeed, as I recall, our key founding document asserted that our rights preceded government and that, indeed, the purpose of government was to protect those rights.
But, we appear to disagree on those counts.
Also: the notion that majority support for an action confers rightness upon that actions is problematic (ask, for example, generations of slaves, to note a rather obvious example). I know that more citizens agree with you than agree with me–that does not, however, mean that you (or they) are necessarily correct about either the philosophical basis of your position or in the efficacy of the policy prescriptions in question.
Yes, it seems to me that Beldar’s arguments can be used to justify essentially anything, anywhere.
I think part of the difference here may be between people who use a laptop a lot, and those who don’t. I have no problem with security looking through my luggage, doing pat-down searches, etc. I do have a problem with them taking my laptop.
For those who use a laptop a lot, taking it away is extremely intrusive. A laptop functions almost like a “virtual office”. Taking it away can amount to essentially locking you out of your home and/or business office for an indefinite period of time.
If they could just copy the data quickly, say in 30 seconds, I would have less problem, though I still think it to be unreasonable search. That’s because the degree of privacy violation incurred by searching my laptop is at least an order of magnitude greater than that incurred by searching my luggage.
That’s not logical at all. At your bank, is the security cranked up at the front door, or at vault? Imagine a bank with a very secure front door, and a wide open vault, would you trust them with your money? Even if you would trust them with your money, would you be willing to go through vault-level security to perform simple banking operations?
Would you argue that the government should have the power to impound your wallet without suspicion? How about a woman’s purse? The cloths on your back? Is there a line that should not be crossed?
When the First Congress that approved the Bill of Rights passed laws authorizing customs searches without probable cause or reasonable suspicion (See Joyner update), how can one argue that such searches are un-American or violate the Fourth Amendment or are court-made rules?
On the one hand, people might be thinking they have nothing to hide, and that it’s good the government is looking out for their citizens. But people forget that laws and abuses of power such as these are why America fought its very first war. The government has chosen to forget the Constitution in favor of an “ends justifies the means” logic. Criminal law, Supreme Court decisions and hundreds of years of precedent be damned, let’s make every citizen a suspect.