[JURIST] US Sen. Russ Feingold (D-WI) [official website] has criticized the Customs and Border Protection's (CBP) [official website] warrantless searches and seizures of travelers' laptops and other digital devices at the US border, calling the searches an unacceptable invasion of privacy [hearing materials]. The Supreme Court has held that reasonable suspicion is not necessary to conduct routine searches at the border, but searches of laptops and other digital devices are analogous to more invasive practices such as strip searches, said Feingold, who chairs the Senate Subcommittee on the Constitution [official website]. In his opening statement at a congressional hearing on this issue last week, Feingold said [speech text]:
Ideally, Fourth Amendment jurisprudence would evolve to protect Americans privacy in this once unfathomable situation. But if the courts cant offer that protection, then that responsibility falls to Congress. Customs agents must have the ability to conduct even highly intrusive searches when there is reason to suspect criminal or terrorist activity, but suspicionless searches of Americans laptops and similar devices go too far. Congress should not allow this gross violation of privacy.Feingold said that the Department of Homeland Security (DHS) [official website] will not explain why and when it conducts such digital searches. AP has more.
Feingold has often criticized [JURIST report] the Bush administration's failure to share information with Congress, and in February, privacy advocate Electronic Frontier Foundation [advocacy website] filed suit [complaint, PDF] against DHS to discover more information on the government's policies. In April, the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] that reasonable suspicion is not necessary for a warrantless search of a laptop or other digital device at the border due to inherent national security interests. The court rejected the argument that a laptop is like a human mind because of its ability to record ideas and emails, and held instead that a laptop is the same as closed containers such as purses and wallets. Civil liberties groups have petitioned [EFF press release] the Ninth Circuit to rehear the case en banc.