Welcome to America, Now Give Us Your Laptop and Cell Phone

Congressman Bob Barr (R-Ga), in this Merion West op-ed, discusses how the federal government is increasingly claiming the right to search people’s laptops and smart phones.

The necessity for the federal government to know what items were being brought into the country from outside our borders, in order to ensure payment of customs duties, was deemed of such importance that the very first Congress in 1789 passed a law providing plenary authority for Customs officials to conduct searches of any vessel in order to discover contraband (several years later, in 1815, the authority was extended to “any person…or beast of burden” crossing the border into the United States). This power occupies the constitutionally dubious distinction of being one of the very first exceptions to the warrant requirement guaranteed by the Fourth Amendment to our Constitution.

Now, two centuries later as foreign visitors to the United States are discovering, the power to search a suitcase or a saddlebag for contraband hidden among one’s packed underwear has morphed into a broad—almost limitless—assertion of power by Uncle Sam to electronically scroll through a person’s laptop or smart phone, searching not for evidence of contraband, but for evidence of, well, whatever government agents want to look for.

While U.S. citizens may take solace in the fact that Customs agents are asserting this broad authority generally as to foreign travelers entering the United States, the power is bleeding over into searches of American citizens returning to their home country. And, despite a 2013 opinion by the Ninth Circuit Court of Appeals that a forensic search of a laptop computer belonging to a U.S. citizen reentering the United States after a trip to Mexico required a showing of reasonable suspicion that the owner had committed a crime, the slippery slope of border searches based on little more than whim appears already in front of us.