Another national security tool appears on the verge of taking a hit this week. A tool that has been effective despite its rare use. A tool that has persevered despite the numerous attempts to have the Supreme Court restrict its use.
Despite the protections of the 4th Amendment “that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” the Supreme
Court has repeatedly stated that the authority of the United States to search the baggage of an arriving international traveler is based on its inherent authority to protect its territorial integrity. By reason of
that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.
This position was recently reaffirmed by the 9th Circuit, the United States versus Michael Timothy Arnold. Arnold entered the U.S. at LAX on July 17, 2005 after a three week trip to the Philippines. A search of his
laptop computer by Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) disclosed images depicting child pornography. Arnold filed his motion to suppress this evidence claiming that the government conducted the search without reasonable suspicion.
CBP (and ICE) have internal operating policies regarding the search (and seizure) of laptop computers and other electronic devices. They have been conservative in conducting these searches as reflected in CBP’s most recent statistics from the first two weeks of August that show that 17
million people sought entry into the U.S., and 40 of these had their laptops searched. Some of those “40 searches” were as minimal as asking the traveler to turn on their laptop to make sure that they were not
concealing contraband in the computer. CBP spokesperson Amy Kudwa stated that “you’re more likely to be struck by lightning than to have your laptop searched.”
Despite this it appears that Congress has again succumbed to the pressure of many civil rights and advocacy groups with the introduction of the Traveler’s Privacy Protection Act sponsored by Senators Feingold, Cantwell, Akaka and Wyden and in the House by Representative Adam Smith.
The bill is designed to prevent DHS officers and agents from searching laptops and other electronic devices without reasonable suspicion. The Act requires DHS agents to have reasonable suspicion of illegal activity
before searching the contents of electronic devices carried by U.S. citizens or lawful residents.
This legislation is supported by the ACLU, Center for Democracy and Technology (CDT), Association for Travel Executives (ACTE) and the airline industry. The ACLU is asking that the Act be amended to include all travelers to the U.S. (It is presently limited to USCs and LPRs.)
Another national security tool out of the toolbox. Another challenge and hurdle to law enforcement as they continue to protect us from terrorists, pedophiles, espionage, theft of intellectual property rights, etc.
Another circumvention of the Constitution and its protections.