BORDER SEARCHES OF ELECTRONIC MEMORY

In an editorial last week, The New York Times urged Congress to pass a law limiting border searches of computers to cases where agents have a reasonable suspicion of illegal activity and requiring probable cause and a judicially signed warrant to hold a computer more than 24 hours. Under current law any agent checking luggage or carry-on baggage at a border can indiscriminately search and detain a computer. A supervisor’s permission is only needed if it a laptop, smart phone, or similar device is held for over five days.

The New York Times points out that laptops are depositories of our most private information. But the issue goes much deeper. There are two primary reasons for border searches: 1) to enforce customs laws and 2) to prevent terrorist acts. Historically the purpose of border searches was to enforce tariffs and customs laws. But recently it has become necessary to prevent the importation of bombs and other weapons of terrorism. Certainly it is reasonable, under the Fourth Amendment. to perform searches to prevent acts, such as the attempt to import a bomb into Detroit. as was attempted by a Nigerian terrorist last year on Christmas. But searches of computer hard drives and memory sticks cannot produce either bombs or items for which tariffs are due. There is a significant difference between a search of a physical item such as an automobile or a suitcase and the search of an electronic memory. Physical items can be used as terrorist weapons or may have tariffs due on them but electronic items such as the memory on a computer cannot be used as a weapon and are not taxed. Few would object to the opening of a CPU to determine if a bomb or other contraband is hidden inside but this does not necessitate the search of the hard drive.

There is no need to detain hard drives or to search them. To detain them and search them, without cause, not only invades an individual’s privacy but may have a significant detrimental effect on the person’s business, schooling, or personal life.