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Government laptop border searches a slippery slope to accessing citizens' electronic communications

Barry Steinhardt [Senior Advisor, Privacy International]: "Customs and Border Protection (CBP) officials have a legitimate power to search for contraband goods crossing national borders. But searching laptops is not a search of goods. It is a search of a storehouse of information - private correspondence, financial and medical records, business records. It is a search of speech protected by the First Amendment to the US Constitution.

CBP claims to be able to conduct these searches for any reason or no reason. Countless numbers of travelers have their laptops searched and even seized at our nation's borders without any requirement that the government has reason to suspect them of illegal activity.

In the last session of Congress Senator Russ Feingold (D - WI) introduced the Travelers' Privacy Protection Act. The bill, which should be reintroduced and passed in the current session, would require that CPB have the Constitutional requirement of probable cause before conducting a laptop search or seizure.

Beyond searches of laptops, the CBP policy raises the question of what other powers should be accorded to the government to search private information crossing the nation's borders. The amount of private speech and information imported by laptop is only a fraction of that which crosses international boundaries every day via the Internet.

If CBP can without cause or Constitutional predicate search a physical vessel for transporting private information, why shouldn't it be able search the private electronic data transported across electronic frontiers?

I hope the prospect of Custom's officials searching electronic communications gives the reader pause. But so should the search of a laptop without cause. The same private information and speech is at risk. Only the means of transport is different."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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