IT WAS BAD ENOUGH for international travelers earlier this year when security officials barred laptop computers from carry-on luggage. Now that the ban has been lifted, a new worry has replaced it: the prospect of U.S. customs agents snooping through your laptop — and even seizing it.
It doesn't happen often — only about 1% of executives surveyed recently by the Assn. of Corporate Travel Executives said their laptops had been confiscated — but it's enough to set off alarm bells. If your laptop holds critical banking data or operational information, the association warns, you're better off e-mailing a copy to yourself before heading to the airport. And if you have truly sensitive items, you'd better not put them on your laptop in the first place.
Officials at the Department of Homeland Security recite the familiar mantra — legitimate business travelers have nothing to fear. Immigration and Customs Enforcement agents, they say, first conduct a routine check of whether a person should be admitted to the country. If that leads them to suspect the traveler is involved in a crime, they'll search any laptop. The only time a computer is seized, the department said in a statement, is "if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography or other criminal activity."
But as the department's records point out, even "legitimate business travelers" may wind up having their laptops rifled if a person fits a suspicious profile (in one case, men between the ages of 30 to 60s traveling alone from Asia), or if an individual is unlucky enough to be chosen for a random inspection. Because the Supreme Court has ruled that agents at international points of entry can perform "routine" searches without a warrant or even reasonable suspicion, some courts have interpreted that to mean all travelers are subject to inspections of their privileged and personal information at any border crossing.
There is a glimmer of hope for travelers eager to keep the authorities' hands off their hard drives. U.S. District Judge Dean D. Pregerson in Los Angeles recently ruled against a laptop search because agents didn't have a reasonable basis to suspect a U.S. traveler of having committed a crime. In Pregerson's view, searching a laptop isn't "routine," and the 4th Amendment's protection against unreasonable searches and seizures applies on the border. The government appealed the ruling to the U.S. 9th Circuit Court of Appeals.
Stopping bad guys at the border is important, and it makes sense to inspect incoming items, including laptops, for explosives and other weapons. But the government has been using the terrorist attacks of 9/11 to redefine "reasonable." There's a clear line between checking a laptop for explosives and reading its contents, and agents should have an excellent reason to cross it.