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.
In the post-September 11 world, it goes without question that the security of the American people is first and foremost. Customs agents have the right and responsibility to conduct even very intrusive searches of traveling Americans. But suspicionless searches of the contents of laptops or similar electronic devices go too far.
Those kinds of searches are also likely to be ineffective and inefficient. The department has not identified a single case in which a suspicionless search uncovered evidence of wrongdoing. If anything, suspicionless searches undermine border security by wasting the limited resources of customs agents at the border. They also impose a hefty price tag on American businesses—which are forced to take costly steps to protect confidential business information—at a time when the economy needs all the help it can get.
Congress needs to prohibit this gross violation of the privacy of law-abiding Americans. That is why I introduced the Travelers Privacy Protection Act. The bill would require Homeland Security agents to have reasonable suspicion before searching the contents of laptops and similar electronic equipment carried by U.S. citizens or other lawful residents of the United States. Reasonable suspicion is not a burdensome standard to meet; it simply requires the department to have some legitimate reason for suspecting that a particular person is engaged in illegal behavior. The bill also prohibits random profiling based on race, ethnicity, religion, or national origin. This kind of profiling is inconsistent with our values, and it is counterproductive as a matter of law enforcement.
Congress must bring the government's practices at the border back in line with the reasonable expectations of law-abiding Americans. Requiring reasonable suspicion for electronic border searches respects Americans' privacy and enhances the security of our borders by focusing the government's resources where they can do the most good. And it will restore the confidence of law-abiding Americans who don't understand why the government can look at the most sensitive personal details of their lives without any reason to think they've done anything wrong. That kind of thing shouldn't happen in the United States of America, and it won't happen if the Travelers Privacy Protection Act is the law of the land.
Russell Feingold, a Democrat, is a U.S. senator from Wisconsin. He chairs the Constitution Subcommittee of the Senate Judiciary Committee.