Privacy groups praise bill curbing warrantless laptop searches

Computerworld - Privacy and civil rights groups are welcoming legislation that proposes tough new standards for conducting searches of laptops and other electronic devices at U.S. borders.

The legislation, called the Travelers' Privacy Protection Act of 2008, was introduced last week by Sens. Russ Feingold (D-Wis.) and Maria Cantwell (D-Wash.) and Rep. Adam Smith (D-Wash.).

The bill is aimed at curbing the controversial practice by U.S. Department of Homeland Security (DHS) officials of conducting searches, without apparent reason, of laptops, cell phones, storage devices and other electronic items belonging to travelers arriving at U.S. borders.

The Feingold bill, though a long way from becoming law, has the support of the American Civil Liberties Union and the Association of Corporate Travel Executives (ACTE), both of which have been strongly opposed to the DHS border searches.

Feingold, in a statement, said the bill was introduced in response to a DHS policy announced on July 16 that allows customs agents at U.S. borders to seize laptops from travelers without giving a reason. The DHS policy (download PDF) allows agents to retain seized laptops for an unspecified period while the contents are searched and analyzed even if there was no individualized suspicion to trigger the search.

The DHS has argued that it needs the ability to conduct such searches to ensure border security. In the few instances where the issue has gone to court, the decisions have tended to favor the department's view. In April, for instance, the U.S Court of Appeals for the Ninth Circuit held that customs officers need no reasonable suspicion to search through the contents of a person's laptop at the country's borders.

In arriving at its decision, the court noted that searches of closed containers, such as briefcases and wallets, have long been allowed at U.S. borders and concluded that computers were no different from such containers. Similarly, the Fourth Circuit Court of Appeals also upheld the validity of the warrantless searches at U.S. borders, saying that requiring warrants would impose an "unworkable standard" on border agents.

Announcing his bill last week, Feingold noted that most Americans would likely be "shocked" to know that the contents of their laptops, including personal documents, e-mails, photographs and browsing histories, would be liable to such searches without cause. The bill would bring the government's border search practices "back in line with the reasonable expectations of law-abiding Americans," he said.

Feingold's bill spells out standards for search and seizures of electronic equipment belonging to U.S. travelers at airports and other borders. The biggest condition is that such searches may be initiated only if the customs agent has "reasonable suspicion" that the traveler is carrying contraband or items otherwise prohibited in the country, or because the traveler is prohibited from entering the U.S. The equipment may be seized only if the DHS secretary, a relevant federal or a state law enforcement agency obtains a probable-cause warrant on the belief that the equipment contains information that either violates a law, provides evidence of illegal activity or is foreign intelligence material.