Laptop search policy still a concern for journalists

From the Fall 2009 issue of The News Media & The Law, page 26.

When the Department of Homeland Security revised its policies last summer on how border agents should handle laptop computer searches, it was meant to make the process more transparent.

But the revisions only highlight the debate over whether searching electronic storage devices is more akin to a simple suitcase search or a body cavity search, which can be conducted only if a traveler arouses a reasonable suspicion. How laptops are categorized will have important ramifications on the newsgathering process for journalists.

“We think that the impact on reporters is especially significant,” said Larry Schwartztol, an attorney with the American Civil Liberties Union’s national security project. “If reporters are chilled in their ability to do the kind of reporting that involves interviewing confidential sources in other countries . . . then that’s something that has a really troubling potential to infringe on First Amendment rights.” Under the two directives — one for Customs and Border Protection and one for Immigration and Customs Enforcement — agents are required to seek legal advice when travelers claim laptop material is protected from search due to trade secrets, attorney-client privilege, doctor-patient confidentiality or journalism source confidentiality. Lawyers then advise the agents how to proceed.

In an Aug. 27 statement, Department of Homeland Security Secretary Janet Napolitano said the new policies would “strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”

A department privacy report shows that it conducted 1,947 electronic media searches out of 144.4 million travelers who entered the United States between Oct. 1, 2008 and May 5, 2009. Of those electronic media checks, agents searched 696 laptops, including instances when they merely turned on the device. Of that number, homeland security personnel conducted 40 in-depth searches. Civil liberties and electronic freedom advocates worry categorizing laptops as mere luggage puts the First and Fourth Amendment rights of thousands of travelers in jeopardy.

“Laptops are different from other items traditionally carried across the border because they have the capacity to contain so much information, and some of it is incredibly personal,” said Marcia Hofmann, a staff attorney at the Electronic Frontier Foundation.

Several members of the House of Representatives have taken steps to differentiate electronic data storage devices from suitcases through legislation. Rep. Eliot Engel, D-N.Y., sponsored a bill in January that would require border officials to have a reasonable suspicion before searching an electronic device and probable cause to seize one. “I think that would go a long way in stopping this arbitrary seizure,” Engel said. “Each individual has personal material on their laptop, and it’s not for the government to say what’s personal and what’s not personal.”

A separate bill, H.R., 1726 — known as the Border Security Search Accountability Act — was introduced by Rep. Loretta Sanchez, D-Calif., that would heighten the suspicion requirement. The bill, which now has 18 cosponsors, went to the committee in July and Sanchez hopes to see it marked up this year.

“I am committed to giving border agents and other homeland security officials the resources they need to protect this country against potential threats,” Sanchez said. “But I also understand that we need to balance our need for security with our respect for civil liberties. More and more Americans store private information on laptops, smart phones, and other electronic devices, and our privacy laws should reflect that reality.”

Whether that private information means that electronic devices differ significantly from suitcases and other impersonal objects has long been a key point of contention between advocacy groups and the government, and the argument has at times been decided by the courts.

Two federal courts of appeal — the Ninth Circuit and the Fourth Circuit — have ruled that laptops are like suitcases and border agents are therefore not required to have a reasonable suspicion, based on a traveler’s demeanor or physical appearance, before searching them.

When the Ninth Circuit heard United States v. Arnold, it reversed an order suppressing the evidence obtained during a border search that revealed illegal images of child pornography on a laptop computer.The court held that a laptop is like luggage and previous courts had determined that the Fourth Amendment’s protection against search and seizure does not require a reasonable suspicion before searching luggage at the border.

A border-search exception for letter mail was established in the 1977 case United States v. Ramsey before the U.S. Supreme Court. Though a custom officer’s search that uncovered envelopes filled with heroin did not meet standard Fourth Amendment requirements, the court found that border searches have been held to a different standard since the creation of the United States. “This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself,” wrote Justice William Rehnquist.

The Fourth Circuit Court of Appeals in Richmond, Va. reached a similar conclusion in 2005 in United States v. Ickes, when it held a laptop was like cargo and wrote, “The border search doctrine is justified by the longstanding right of the sovereign to protect itself.”

Despite the setbacks, the ACLU and EFF say they plan to continue pushing to clarify and reform the DHS laptop search policies. EFF’s Hoffman says at least one important question that remains unanswered by the current policy is whether citizens have the right to refuse access to their password-protected laptops, possibly a Fifth Amendment right against self-incrimination.

In the 2007 federal case In re Boucher, a federal magistrate judge in Vermont held that while a Fifth Amendment right against self-incrimination does not protect the voluntarily prepared contents of a laptop, it does protect a defendant against attempts to compel a password. A judge reversed that ruling last February on other grounds.

Schwartztol called the most recent policy revisions mere “window dressing” that did little to protect constitutional rights and said the ACLU would push for more comprehensive reform.

“We’re hoping to continue to hear from travelers who are subject to this policy,” he said.

“We are committed to advocating for reform of the policy so that it conforms to basic constitutional requirements.”