Via BoingBoing, I see that the Department of Homeland Security asserts the right to search your tech-fetish geegaws and tell the world that you like Michael Bolton and, God help you, this blog. DHS asserts that as part of its broad border search authority, it can take your laptop and iPod and Blackberry, send them offsite for an indefinite period of time to be analyzed by third parties of its choosing, not to mention any other agency in our government's inquisitive alphabet-soup. The government, relying on border search authority more typically applied to drug interdiction efforts, asserts that it needs no reasonable suspicion or suspicion particularized to you to do this:
Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not infringe on Americans' privacy." In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.
The new policy is here.
Regrettably, the Ninth Circuit recently ruled that the traditional rule permitting warrantless and suspicionless border searches for things like drugs extended to permit searches of data on a laptop. I think that's questionable based on the comparative reasonable expectation of privacy in one's person and luggage, on the one hand, and in one's writing and reading history, on the other hand. (Moreover, even if it were appropriate to search for, say, image files that might be child porn, I don't think that makes it reasonable to read non-image documents.) But for now, at least, the most liberal court in the nation will back DHS's play.
Last 5 posts by Ken White
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