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Legislation Would Limit DHS’s Right to Seize Laptops

In a reaction to the US Department of Homeland Security’s recent assertion that it has the right to seize laptop computers at any US border, three US Congresspersons have introduced legislation designed to limit DHS’s power. Senators Maria Cantwell and Russ Feingold and Representative Adam Smith, all of whom are democrats, initiated legislation named the Travelers Privacy Protection Act. The DHS currently lets customs agents seize any laptop system for as long as they need to inspect data stored therein without having to give a rationale for doing so. The laptop’s owner is also required to surrender the password if border agents demand it.

The legislation would necessitate the DHS having reasonable suspicion based on compelling evidence that there is illicit activity before computers and other electronic devices in the possession of US residents could be seized and inspected. The DHS would also have to give probable cause and a warrant or court order if such computers and other devices are to be kept longer than 24 hours. The legislation also would restrict what information collected in the course of conducting electronic searches could be divulged. Finally, it would require the DHS to regularly give an account of its actions related to border searches to Congress.

Any of you who read the blogs I have written over a period of more than one year know that I have long been concerned about the current climate of disregard for privacy rights in the US. I am very aware of the need to combat terrorism, and realize that to be successful in this endeavor there will be times when fighting terrorism outweighs the right to privacy. However, something is dreadfully wrong when border agents are afforded the power to seize and inspect any laptop they want at any time for any reason whatsoever, and then keep the computer indefinitely if they so desire. Computers almost always contain a great deal of personal, sensitive information in the form of email messages, photographs, and more—information that people deem private and that would be embarrassing to them if it were to be viewed by someone else. This information should thus not be available to DHS border agents at their whim. Additionally, having a computer system seized is very disruptive to individuals who use the system to get their work done. Furthermore, people should not have to surrender the password to a system they own unless there is a compelling rationale to require the person to do so.

It will be interesting to see how the new legislation fares. There appears to be a good chance it will pass in both the Senate and the House. The big question is thus whether President Bush will sign it or whether he will veto it, and if the latter occurs whether there will be enough votes in Congress to override the veto. Fortunately, slowly but surely some of the excesses in terms of erosion of individual rights and liberties in the US are being reversed. The great German philosopher Georg Wilhelm Friedrich Hegel said that theses are created and that antitheses that negate the theses emerge. Eventually, however, synthesis that resolves the conflict between theses and antitheses occurs. We’ve seen a lot of antitheses when it comes to personal rights and liberties; perhaps it’s now time for some synthesis.

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