gregh  2008-08-07 18:03  border  cbp  dhs  fourth_amendment  laptops  privacy   

Jayson Ahern, Deputy Commissioner, U.S. Customs and Border Protection, recently posted a blog entry at the Department of Homeland Security's site. In it, Mr. Ahern takes issue with the criticism that has been level against Customs and Border Protection ("CBP") in light of the news that they've been routinely nabbing laptops and other electronic devices, imaging the full contents, and sharing those contents with other agencies. It's a tired refrain of the typical DHS line: 1) we're at risk; 2) we've always been doing it, anyway, and you just didn't know about it; and 3) the courts say it's okay, so that makes it okay.

Leadership Journal: Answering Questions on Border Laptop Searches:

First, it’s important to note that for more than 200 years, the federal government has been granted the authority to prevent dangerous people and things from entering the United States. Our security measures at the border are rooted in this fundamental fact, and our ability to achieve our border mission would be hampered if we did not apply the same search authorities to electronic media that we have long-applied to physical objects--including documents, photographs, film and other graphic material.

Who knew that documents, photographs, film, and other material constituted "dangerous things?" Those things aren't dangerous, of course, and to characterize them as such is the way of the simple, who have no reasoned explanations for their mindless actions. Might those items contain information that might be used to commit harm? Probably. However, it is people acting, not the things in their possession, that cause harm and create dangers. That's true whether the items contain child pornography, bomb making plans, or obscene comic books.

In the 21st century, terrorists and criminals increasingly use laptops and other electronic media to transport illicit materials that were traditionally concealed in bags, containers, notebooks and paper documents. Making full use of our search authorities with respect to items like notebooks and backpacks, while failing to do so with respect to laptops and other devices, would ensure that terrorists and criminals receive less scrutiny at our borders just as their use of technology is becoming more sophisticated.

So, to, do many law abiding Americans and aliens, who might like "to be secure in their persons, houses, papers, and effects." The difference is one of need. In this modern era of electronic media, there's little reason to feel threatened by the transport of a laptop. There are countless smarter, more efficient ways that a devious criminal would find to migrate that data across the border. In fact, a laptop with a spinning hard drive is perhaps one of the worst. It's the clear electronic devices that are the least threatening.

The agency would be better off not lying to the American people and fully explaining what this is: a fishing expedition. Grab laptops and these other electronic devices, create images, and then use them either in the coming copyright enforcement battles or to simply watch and hope for the appearance of incriminating data.

This brings me to my third point, which is that travelers whose laptops are searched represent a very small number of people. As Secretary Chertoff noted in a recent op-ed,

"Of the approximately 400 million travelers who entered the country last year, only a tiny percentage were referred to secondary baggage inspection…[and] of those, only a fraction had electronic devices that may have been checked.”

This number is less than one percent of people entering the United States. Contrary to some media accounts, we’re not rolling out a new strategy and screening an exorbitant number of travelers. We’re simply following a common sense border policy that has been in place for years, and has been reaffirmed by the courts.

Unless they're horribly misstating their case, there is a "common sense" policy that permitted the CBP to search the electronic devices of up to 4 million people entering the United States last year. One percent may, indeed, be a small percentage. However, 4 million people is not a small number of people.

I hope this has helped answer some of your questions. One of the lessons 9/11 taught us was that we must adapt to 21st century risks and anticipate rather than react to new threats. Our CBP officers are on the front lines every day ensuring that these lessons are heeded. We trust that travelers understand the need for these sensible security measures.

"One of the lessons 9/11 [has] taught" the rest of us is that those in power will use 9/11 as a ready justification for any unwarranted intrusion into the privacy of Americans and the expansion of governmental power and knowledge. Can Mr. Ahern look at the mirror after trotting out this 9/11 crap to support his points? More importantly, if this has been long-standing policy, backed by more than 200 years of authority, as he asserts in the posting, shouldn't we have better lessons than 9/11? What laptops with plans slipped through prior to 9/11 that permitted it to occur?

None, would be my guess.