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    Two Academic Articles on Privacy Generally and As Connected With Border Security

    Both found via PogoWasRight.org.

    Here are two academic articles about privacy issues that might be of interest to readers.

    First, an article (pdf) by Jed Rubenfeld, Robert R. Slaughter Professor at Yale Law, entitled, “The End of Privacy.” Rubenfeld raises a number of questions, some of them surprising. I agree with some points but am skeptical of others. From the introduction:

    This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.

    Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the “unlawful combatant” detentions? What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have communicated with and when and for how long? What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA’s covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all? What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates — and how could it reclaim its relevance? This Article tries to answer these questions.

    At the heart of search and seizure law today, there is a kind of doctrinal black hole, known as the “reasonable expectation of privacy.” This concept, the “touchstone of Fourth Amendment analysis,” has never been able to do the work required of it.

    Second, an article by Nathan Alexander Sales, an assistant professor at George Mason Law, concerning border laptop searches, about which I have previously written. This article is based on his testimony before a Senate subcommittee. I strongly disagree with the author, but I believe in an open, honest debate and will leave you to judge the issue for yourselves. From the abstract:

    Should customs officers be able to search laptop computers at the border in the same way they inspect suitcases and packages? This article argues that, in general, suspicionless border searches of laptops and other electronic storage devices are permissible under the Fourth Amendment. It begins by surveying the competing interests that are implicated by laptop searches at the border, including the government’s need to combat terrorism and child exploitation, as well as travelers’ interests in privacy and free expression.

    Next, the article discusses the Supreme Court’s border-search doctrine. “Non-routine” border searches (e.g., invasive searches of the body) are subject to the reasonable-suspicion standard, but “routine” searches (e.g., searches of property) need not be based on any individualized suspicion at all. The article then considers how the border-search doctrine might apply to laptops. Lower courts generally hold that customs can inspect laptops without reasonable suspicion, and this consensus is largely correct. Laptops differ from other kinds of property: They contain a greater volume of material, the data they store is intensely personal, and digital searches can leave a permanent copy of the data in the government’s hands. But those differences generally do not justify a special exception to the border-search doctrine. In fact, laptop searches have the potential to be less, not more, intrusive than traditional border inspections of physical objects.

    Finally, the article discusses possible legislative or administrative reforms that might better balance travelers’ interests against the government’s needs. It might be appropriate to protect laptop owners’ privacy interests at the border, not through traditional “collection limits” (which restrict the government’s ability to gather information in the first place), but with “use limits” (which restrict the government’s ability to share or otherwise use the information it does gather).

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