Two years ago a freelance journalist named Bill Hogan returned home to Virginia from a trip to Germany and had his laptop seized at Dulles International Airport. U.S. Customs agents reportedly told him he'd been selected for a random investigation. The agents went through photos on his digital camera, he said, and impounded the computer for two weeks.
He was especially angry because "they knew I was a reporter," he said at the time. "They did not seem to give a rat's patootie."
One underreported aspect of border security in America since 9/11 is that U.S. Customs and Border Protection sees a laptop as a sort of digital briefcase, to be rifled through without a warrant. And court decisions in recent years have upheld the government's right to prosecute people based on data found on their hard drives.
The latest ruling is by the U.S. District Court for the Southern District of Texas, which declared last month that child pornography found during a warrantless search of Sandeep Verma's laptop at a Houston airport in 2008 was material evidence against him.
Of course, Verma was not charged with possessing child pornography until Customs agents searched his laptop and found it there.
Justices on the 9th Circuit Court of Appeals in San Francisco made the government's argument for these searches in an earlier case, also involving child pornography: "It should not matter ... whether documents and pictures are kept in 'hard copy' form in an executive's briefcase or stored digitally in a computer," the three-judge panel wrote. "The authority of customs officials to search the former should extend equally to searches of the latter."
Child pornography is obviously a crime and so are the terrorist plots that the CBP claims these random searches are meant to intercept. But is a laptop really just a digital briefcase? What about cell phones, digital cameras, USB sticks, PDAs and now iPads? Don't they contain enough personal data to require some sort of warrant to examine?
"These highly intrusive government searches into a traveler's most private information, without any reasonable suspicion, are a threat to the most basic privacy rights guaranteed in the Constitution," argued American Civil Liberties Union attorney Catherine Crump, who led an investigation into the problem.
The ACLU demanded records on laptop seizures under the Freedom of Information Act and found a surprising number of them — 1,500 in nine months — as well as a possible pattern of racial profiling. In mid-2009, the Department of Homeland Security brought out new guidelines, but the upshot was nothing but a limit on the amount of time the relevant agencies could hold a laptop for examination.
"DHS' latest policy announcement on border searches is a disappointment," said Crump, "and should not be mistaken for one that restores the constitutional rights of travelers at the border."
Europeans find the policy impossible to understand. One refrain popular with Washington officials is that Europeans are soft and haven't learned what it's like to be threatened by terrorists because Sept. 11 never happened to them.
But Europe lost its innocence about terrorism long ago: Islamists were a problem in the Eastern Hemisphere long before they came to America. France had to contend with Algerian nationalists in the '60s, and Palestinian terrorists brought mayhem to Munich and European airspace before al-Qaeda even existed.
In a Paris airport, in the '90s, I once watched a bomb squad calmly clear spectators away from an unattended luggage cart to a distance of 50 yards, loop wires around a briefcase and blow it open. (It was full of papers.) At the time I remember thinking, "This would never happen in the United States." These days Europeans pass through American airports with the same sense of astonishment.