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    New York Times: Can You Frisk a Hard Drive?

    In an essay at the New York Times, David K. Shipler discusses the warrantless searches and seizures of electronic devices — cellphones, cameras, laptops, external hard drives — by Customs officials at the U.S. border. To recap: A few years ago, we learned that the Bush administration (via the Department of Homeland Security) had steadily broadened its search and seizure powers at the United States border. Basically, the federal government said that border officials can take whatever they desire from U.S. citizens and others (laptops, cellphones, cameras), for as long as the officials want, and share it with whomever they please, without any hint of wrongdoing.

    In 2009, the Obama administration unveiled new rules on searches of electronic devices at the U.S. border, yet the broad search and seizure powers remained. And the DHS Privacy Office approved these broad powers in a Privacy Impact Assessment (pdf). The Privacy Office said that travelers are subject to suspicionless searches and their electronic devices may be viewed, copied or seized by border agents without a specific cause. And it is possible that travelers would have no idea that their devices had been viewed or copied. The public outcry against the searches has continued; the ACLU filed a lawsuit last year challenging the federal government’s policy allowing border agents’ searches and seizures of travelers’ electronic devices — even if the travelers are not suspected of wrongdoing.

    Now, Shipler writes:

    Digital inspections raise constitutional questions about how robust the Fourth Amendment’s guarantee “against unreasonable searches and seizures” should be on the border, especially in a time of terrorism. A total of 6,671 travelers, 2,995 of them American citizens, had electronic gear searched from Oct. 1, 2008, through June 2, 2010, just a tiny percentage of arrivals.

    “But the government’s obligation is to obey the Constitution all the time,” said Catherine Crump, a lawyer for the American Civil Liberties Union. “Moreover, controversial government programs often start small and then grow,” after which “the government argues that it is merely carrying out the same policies it has been carrying out for years.” […]

    In general, “we’re looking for anyone who might be violating a U.S. law and is posing a threat to the country,” [Kelly Ivahnenko, a Customs spokeswoman,] explained. “We’re in the business of risk mitigation.”

    Yet the mitigation itself has created a sense of risk among certain travelers, including lawyers who need to protect attorney-client privilege, business people with proprietary information, researchers who promise their subjects anonymity and photojournalists who may pledge to blur a face to conceal an identity. Some are now taking precautions to minimize data on computers they take overseas. […]

    In simpler days, as customs merely looked for drugs, ivory, undeclared diamonds and other contraband that could be held in an inspector’s hand, searches had clear boundaries and unambiguous results.

    Either the traveler had banned items, or didn’t. Digital information is different. Some is clearly illegal, some only hints at criminal intent, and under existing law, all is vulnerable to the same inspection as hand-carried material on paper.

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