Opinion: Laptop Searches Without Suspicion Are So Very Wrong

Computerworld — I have generally supported the government's border search policies. But I am horrified by the recent DHS Privacy Office's approval of searches of electronic devices without suspicion. It is wrong for many reasons; from the constitutional to the logistical.

Government does have the right to conduct searches when there is even a slight reason for suspicion. I wouldn't want to impede the intuition of well-seasoned U.S. Immigration and Customs Enforcement officers. They are on the front lines, and it is reasonable to give them some latitude. But that doesn't extend to pulling someone out just because they feel like it.

Constitutionally, this policy has been examined by others more knowledgeable than me. Suffice to say that it is horrifying that a U.S. citizen on U.S. soil could be subject to illegal search and seizure on the basis of ... nothing -- no evidence, and not even a shred of suspicion.

Beyond that, though, there is the dubious opinion of the Department of Homeland Security's Privacy Office that searching electronic devices is no different than searching a briefcase or backpack. That is one of the most clueless statements to come out of the DHS. It is a simple matter to show that a person caught with physical contraband had the intent to carry that property. It's a lot harder to argue that all the data on a person's computer is there by the volition of that person. And searching a laptop computer is a much greater violation of one's privacy than searching a suitcase. Laptops often contain data that would never be physically carried by a traveler, such as bank records, health data and information about relatives and friends. And a corporate device could contain sensitive information, company secrets, data that the company is bound by law to protect. Do we really want ICE officers making copies of such information? If there was a legitimate suspicion to justify the search, I wouldn't object to any of that information being exposed to the searchers. But searching a computer without suspicion unnecessarily exposes a plethora of private information that would not otherwise be available to law enforcement authorities. Bureaucrats should always place themselves in the shoes of those they are regulating before writing policies. I would have liked to have seen the staff of the Privacy Office make their personal laptops available to the public before they made this ruling.

And here is a question to ponder: What type of crimes are you looking for when you conduct a suspicionless search? The interest of ICE officers presumably is to find information that protects the country from outside harm and to make sure that people properly declare information upon entering the country. But computer-related crimes are not abetted by being overseas. If a known criminal is entering the country with electronic devices in tow, I'd say go ahead and search the devices. In the absence of any suspicion at all, I'd expect restraint.

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