According to the U.S. Department of Homeland Security (DHS), Customs and Border Protection (CBP) officers can confiscate and detain travelers' laptops at the U.S. border without suspicion of wrongdoing. Laptops can be taken to an off-site location for an undisclosed period of time, during which officials may examine the computer's contents and share copies of files with other agencies. This policy applies to any other form of digital or analog storage device, including iPods, cell phones, flash drives, hard drives, and tapes.
The key to the above paragraph, of course, is "without suspicion of wrongdoing." Indeed, in the policy (PDF), DHS says (emphasis mine), "In the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States."
There are two sides to the argument that inevitably ensues when government policy such as this arises: One that is in favor of protecting the country at all costs, and one that is not in favor of sacrificing fundamental civil rights in the name of security. I'll get to that in a minute, because we travelers are faced with an altogether different but inextricably entwined dilemma: To bring, or not to bring, your laptop, iPod, cell phone, and so forth.
In a July 17 USA Today editorial, DHS secretary Michael Chertoff stated, "Of the approximately 400 million travelers who entered the country last year, only a tiny percentage were referred to secondary baggage inspection for a more thorough examination. Of those, only a fraction had electronic devices that may have been checked." Well, that sounds good, right? The legality of laptop searches aside, only a few unlucky souls are subjected to "secondary baggage inspection" over the course of the year.
Thing is, Chertoff goes on to say, "As a practical matter, travelers only go to secondary [baggage inspection] when there is some level of suspicion." This, of course, flies directly in the face of DHS' stated policy, and brings us back to the fundamental question surrounding the issue, which is the legality or lack thereof of such a program. Chertoff says it is legal, and that every federal court to address the issue has approved it. Others are not so sure.
Wisconsin Senator Russ Feingold tells the Washington Post, "The policies ... are truly alarming." Others point out that the policy is easy to circumvent: Simply upload your files to an online storage provider before crossing the border and download when you're on the other side. Then there's Fourth Amendment, which protects "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
This is not a political blog, as I said above, but in the case of this story I simply do not believe the political and practical implications can be separated. You're either willing to subject yourself to unjustified search and seizure or you're not, and your choice determines how you will pack and where you will travel.
For my part, I cannot, as a traveler, pretend that my personal electronic devices, several of which travel with me, are immune from unwarranted and unjustified search and seizure. So, do I bring my iPod, or do I endure a transatlantic flight without my favorite music? Do I blog from the road, or simply take notes to be pieced together back home?
And perhaps more importantly, should we even have to ask ourselves these questions?