In a move sure to agitate privacy advocates, the United States Department of Homeland Security (DHS) revealed last week that federal agents have now been given the power to seize and detain laptops and certain other electronics without any suspicion of wrongdoing during a border search. In addition, agents can hold these devices for unspecified periods of time, and share data from the laptop with other agencies. The new policy affects anyone entering the country, including US citizens, reported the Washington Post.
The reasoning behind these decisions is clear to Homeland Security Secretary Michael Chertoff, as shown in a piece published last month in USA Today. "...the most dangerous contraband is often contained in laptop computers or other electronic devices." Searches have uncovered "violent jihadist materials as well as images of child pornography," he wrote. However, others think differently: "They're saying they can rifle through all the information in a traveler's laptop without having a smidgen of evidence that the traveler is breaking the law," said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "The policies . . . are truly alarming," stated Sen. Russell Feingold (D-Wis.), who vowed to introduce legislation requiring reasonable suspicion before a search could be performed.
Recent court cases have ruled that only noninvasive border searches are permitted without reasonable suspicion under US law. Whereas body cavity searches and x-ray scans would go beyond the line, suitcase searches are deemed reasonable. The problem, therefore, boils down to whether a search of a laptop's contents constitutes an invasive search, which is what most privacy experts claim. "A laptop can hold [the equivalent of] a major university's library: It can contain your full life," says Peter Swire, a professor of law at Ohio State University in Columbus. "The government's never gotten to search your entire life, so this is unprecedented in scale what the government can get." Advocates of the policy, on the other hand, claim that a laptop is no more than a suitcase, and that requiring probable cause could result in massive delays.
Update: Added some more research into the issue.