SLUGGO DON’T BLAB ANY DRAB GAB

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YR PAPERS, LAPTOP AND CELL PHONE, PLEASE

ITEM: Glenn Greenwald covers the current policy of the DHS to search laptops without a warrant.

A FOIA request from the ACLU revealed that in the 18-month period beginning October 1, 2008, more than 6,600 people -- roughly half of whom are American citizens -- were subjected to electronic device searches at the border by DHS, all without a search warrant.  But the willingness of courts to act is unclear at best.  The judiciary, with a few exceptions, has been shamelessly deferential in the post-9/11 era to even the most egregious assertions of Executive Branch power in the name of security.  Combine that with the stunning ignorance of technology on the part of many judges -- many of whom have been on the bench a long time and are insulated by their office from everyday life -- and it's not hard to envision these practices being endorsed.  Indeed, two appellate courts have thus far held -- reversing the rulings of lower courts -- that Homeland Security agents do not even need to show "reasonable suspicion" to search and seize a citizens' electronic products when re-entering their country.  

The same, incidentally, could be said for cell phones, although that seems to vary by state. An Ohio state court recently ruled that the police need a search warrant to look inside yr cell phone. The California Supreme Court has ruled the opposite.

The above policy on laptops suggests federal law will favor the California interpretation, at least until the US Supremes are asked to make a decision.

(It doesn’t help that the US is not the only country that does this, and that this has actually been going on for years.)

Either way, I think it’s a clear case of technology outpacing both the law and the attitudes of those who enforce it. Laptops – and especially cell phones – are not just work tools or simple communications devices. They are highly personalized daily-use items that carry far more information about us than we could ever carry in a purse or rucksack. And law enforcement officials decided arbitrarily that they have the right to go through it primarily because no one’s told them otherwise.

In the meantime, you always have the option of learning how to encrypt data on your laptop, which at least means customs agents won’t find it on a cursory inspection, or if they download yr data to inspect later. Of course, the risk is that if they do find yr data encrypted, they will likely shift to “What have you got to hide?” mode, in which case yr probably doomed.

Rep. Loretta Sanchez (D-CA) has introduced a bill requiring Homeland Security to issue public rules on these kinds of searches and seizures.  It’s pretty weak and unlikely to pass, but it may get some public discussion on the issue.

For all the good it will ultimately do, as Greenwald notes:

One point Rep. Sanchez emphasized is that even if she wanted a stronger bill (and it seems clear she does), the chance of enacting it in the GOP House is very small.  After all, the Democratic Congress did nothing about this problem.  But that underscores one amazing point:  the right-wing of the Republican Party and its "Tea Party" faction endlessly tout their devotion to limited federal government powers, individual rights, property rights, and the Constitution.  If they were even minimally genuine in those claims, few things would offend and anger them more than federal agents singling out and detaining whichever citizens they want, and then taking their property, digging through and recording their most personal and private data -- all without any oversight or probable cause.  

Because as we’ve learned all too many times, Intrusive Govt is only bad when it happens to you and yr family/friends/religion/political party/favorite singer.

Search me,

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