If you ask Americans whether the government has the right to look through their luggage for weapons, drugs, or other dangerous items when they are returning from an overseas trip, most would say, "Sure."
But if you ask them whether the government should also be able to open their laptop computers, read their documents and E-mails, and examine which websites they're visiting—all without any suspicion of wrongdoing—most Americans would probably say, "No way, not in the United States."
Incredibly, that's exactly what the government is doing. Claiming there is no difference between searching a suitcase and searching an electronic device, customs agents have been asking U.S. citizens to turn over their laptops and cellphones when they return from overseas travel. Travelers have been forced to wait for hours while customs agents reviewed and sometimes copied the contents of the electronic devices. In some cases, the laptops or cellphones were confiscated and returned weeks or even months later, with no explanation.
Business travelers are among those most affected by these searches. At a Senate hearing I chaired in June, Susan Gurley, executive director of the Association of Corporate Travel Executives, testified that 7 percent of its members who responded to a survey reported that their laptops or other electronic equipment had been seized when they returned from overseas travel. As Gurley testified, business travelers' electronic devices often serve as their mobile offices. They may contain trade secrets, patent applications, contracts, attorney-client communications, and other sensitive business information. Many companies are now taking expensive and burdensome measures, such as requiring their employees to use "scrubbed" laptops when they travel, to protect this information from forced disclosure at the border.
We also heard disturbing evidence suggesting that Muslim Americans and Americans of Arab or South Asian descent are being targeted for these invasive searches. Many travelers from these backgrounds who have been subject to electronic searches have also been asked about their religious and political views, including why they converted to Islam, what they think about Jews, and their views of the candidates in the upcoming election. This questioning is offensive, and it strongly suggests that some border searches are being based, at least in part, on religious or ethnic profiling.
The administration at first refused to disclose its policies regarding electronic border searches. Members of Congress and the public who sought information on these policies were rebuffed, and the Department of Homeland Security refused to even send a witness to my hearing. Finally, on July 16, 2008, the department bowed to pressure and made public a written policy for electronic border searches.
The policy is alarming in the sweeping authority it claims. According to the policy, customs agents may "review and analyze" the information in Americans' laptops and other electronic devices "absent individualized suspicion." There are no limits on the information that can be searched. So without any reason for suspicion, agents can log on to Americans' laptops, open their files, and review their photographs, medical records, financial records, E-mails, letters, journals, work product, and an electronic record of all the websites they have visited. They can also "detain" electronic devices for an unspecified period of time, take them to another location, copy their contents, and send the devices or the copies to other agencies or even private individuals in some cases.
In response to public outcry against the policy, the department reacted like a traffic officer standing by a 20-car pileup and telling onlookers, "Nothing to see here—move along." Secretary Michael Chertoff publicly stated that the policy contemplates searches only when a person is suspected of wrongdoing, and the department repeatedly claimed that the policy simply spelled out the practice followed by customs agents for years and across administrations.
But that's simply wrong. The July 16 policy expressly states that individualized suspicion is not required for a search—and that is a 180-degree turnaround from previous policy. The policy on border searches of documents through the end of the Clinton administration stated that reasonable suspicion was required to read documents, and even then, only certain documents—those qualifying as "merchandise"—could be read.