Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
The next time you whine about having to take your laptop out of your travel bag when you go through airport security, consider this alternative: Taking your laptop out and either handing it over to the security screeners – or giving those strangers your computer password so they can go through and copy your files and emails.
Don't laugh – but feel free to cringe. It's happening – reportedly almost always to people of Muslim, Middle Eastern or South American backgrounds. And on Thursday, two civil liberties groups (neither of which is the American Civil Liberties Union, by the way) filed a lawsuit against the government to require the disclosure, at the very least, of its computer confiscation protocols.
The Washington Post reports that the lawsuit stems from over two dozen incidents where people of color have had electronic equipment – computers, cell phones, digital cameras – seized by officers of the U.S. Customs and Border Protection service. One woman, the Post reports, was given the choice of turning over her laptop or not getting onto a flight. She was told she would get her laptop back in 10 to 15 days. That was more than a year ago.
She still hasn't gotten her computer back.
Even if you aren't a person of color, and thus the target of such drastic searches and seizures, you have reason to worry. That special and somewhat cloistered world of international business travelers, who often for reasons of commerce tend to travel with sensitive, confidential or otherwise secret and private information, now are clued into the government's new tactics. And some completely legitimate companies, the Post reports, have begun to require their employees to refrain from traveling with such information, lest it fall into the wrong hands, public or private.
The question of how far law enforcement officials may go in appropriating information (and information technology) is only now being answered by the courts. The Fourth Amendment issues are obvious – what level of proof or suspicion must officials possess (probable cause? More?) before they can legally infringe upon a person's right to carry a legal item (a computer)? The First Amendment issues are a little more obtuse – when and in what context does the government have a right to seize and review private information (corporate, personal or otherwise)?
So far, the searches and seizures have taken place only in the context of international flights. But depending upon how the nascent lawsuit plays out – and upon how much publicity and scrutiny it generates among lawmakers – this practice may be promoted to the domestic travel scene in the months and years ahead.
Will we stand for it? You tell me.