Searching Laptops at the Border: a Misdirected Controversy

by Aaron Eitan Meyer

Recently, a controversy has arisen regarding the practice of border searches of laptop computers and other such devices, amid vocal complaints about seized laptops that were detained for weeks.

The controversy has led to the introduction of a bill in the House of Representatives, by Zoe Lofgren (D - Ca), entitled the “Electronic Device Privacy Act of 2008.”1 The bill itself is a rather muddled affair, with its purpose give as being "To preclude searches of laptop computers and similar devices based on the power as  sovereign to search at the border or upon entry to the United States."2 In a nutshell, the proposed bill would not affect searches based on "other lawful authority," but only those  searches predicated on the authority of the United States as a sovereign nation with control over its borders.

Setting aside for the moment several serious Constitutional questions about a bill that seeks to strip the federal government  of a basic power of sovereignty, the issue was not entirely clarified by the response of Jayson Ahern, Deputy  Commissioner of U.S. Customs and Border Protection.3

As summed up efficiently by Douglas N. Jacobson,4  Deputy Commissioner Ahern's arguments may be distilled into three points: 1) that creating a differentiation between computers and other physical objects would hamper CBP's work; 2) that the policy is not a new one; and 3) that less than 1% of travelers are subject to these searches.5

Unfortunately, it appears that both sides are missing the real issue. In his closing paragraph, Deputy Commissioner Ahern states that "One of the lessons 9/11 taught us was that we must adapt to 21st century risks and anticipate rather  than react to new threats."6

Therein lies the rub. The fact is that the internet has made it eminently possible for virtually anyone to transfer information  directly from computer to computer without needing to transport an actual electronic device anywhere. The availability of  myriad means to do so, from Google Documents, which essentially saves documents online in a virtual hard drive, to darknets and other such closed networks, means that potential terrorists simply do not need to transport laptops brimming with information with them.

Put another way, it would be the technologically non-savvy terrorists who would still be foolish enough to rely on physical  transportation of critical information. In other words, those terrorists who would be discovered by these means would be those operating on a 20th century model - and would decidely not properly constitute a 21st century risk. Relying on measures geared to detect, as Deputy Commissioner Ahern put it, "terrorists and criminals [who] increasingly use laptops and other electronic media to transport illicit materials..."7 would become, very shortly, a dangerous reliance on outmoded threat assessment.

However, Rep. Lofgren's proposed bill doesn't amount to anything productive either, as it fails entirely to address the emerging nature of terrorist threats. Instead, it appears to be almost a knee-jerk reaction to a practice she does not agree with.

The real issue here is what these searches can actually accomplish, not whether a sovereign right should be affected - or if that right is really at issue to begin with. If the present purpose is to prevent terrorists operating on a relatively unsophisticated technological level, then the searches might be worth continuing. However, if the real goal is to adequately respond to truly 21st century risks, then adhering to this practice - long-standing and previously effective as it may be - would fail to accomplish its purpose.

The real issue isn't whether CBP can or can't legally continue with these laptop and electronic device searches and seizures, but whether the practice is worth it.

1. H.R. 6588 Introduced on July 23, 2008 http://thomas.loc.gov/home/gpoxmlc110/h6588_ih.xml
2. Id
3. "Laptop Inspections Legal, Rare, Essential" http://www.cbp.gov/xp/cgov/travel/admissability/labtop_inspect.xml
4. "CBP Responds to Laptop Computer Search Controversy" http://tradelawnews.com;
http://www.djacobsonlaw.com/2008/08/cbp-responds-to-laptop.html
5. Id
6. http://www.cbp.gov/xp/cgov/travel/admissability/labtop_inspect.xml
7. Id