During an interview with Wired.com's Threat Level Blog on Monday, Department of Homeland (DHS) Secretary Michael Chertoff said that DHS' policy of suspicionless laptop searches at the border is actually based on border agent suspicion.
Chertoff told the blog:
We get about 80 million people a year coming to our airports, and a very small number are put into secondary inspection and that's based on some suspicion that the inspector has about the person.
It is that pool of people in secondary that have their things gone through, they can have their luggage and documents gone through. And nowadays because you can bring contraband through on a laptop, they can have their laptop looked at.
You are looking for material that is contraband itself, such as child pornography or information about how to set up remote control IEDs. Or if they are non-Americans, you are looking for information on the laptop about why they should not be admitted.
The interview provoked a response from Senator Russ Feingold (D-WS)—a civil libertarian—where he charged Chertoff's comments were a "blatant mischaracterization" of DHS policy.
Secretary Chertoff's description of the newly published DHS policy on laptop searches was not just misleading – it was flat-out wrong. In an interview with Wired.com, the Secretary stated that "[w]e only do [laptop searches] when we put you into secondary [screening] and we only put you into secondary [screening] ... when there is a reason to suspect something."
But the actual policy that DHS published says the exact opposite. It does not even mention secondary screening, let alone limit laptop searches to those cases, and it expressly states that Americans' laptops may be searched "absent individualized suspicion."
(You can check out the actual DHS "Policy Regarding Border Search of Information" here.)
In turn, DHS spokesman Russ Knocke waved off Feingold's concerns as "sour grapes and paranoia from someone who can't accept that even the 9th Circuit ruled that what we're doing is constitutional."
The 9th Circuit Court is considered the nation's most liberal. It recently ruled that customs agents' suscipionless searches of laptops are constitutional due to the "border search doctrine," which gives border agents the latitude to conduct suspicionless and warrantless searches to stop the entry of dangerous or illegal people and materials into the United States.
The 9th Circuit's decision overturned a district court's ruling that laptops constitute an extension of the person that deserves the same level of constitutional protection as a house.
DHS' policy of searching laptops without suspicion has led to outcries not only from civil liberty groups but business groups as well. During a recent congressional hearing, Susan Gurley, executive director of the Association of Corporate Travel Executives, argued that laptops function as the modern-day equivalent of an office and thus should be protected under the Fourth Amendment, which prohibits the government from conducting unreasonable searches and seizures.