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Critics wary of laptop searches at border
Now when Anwar travels, he simply leaves his laptop behind and deletes e-mail off his iPhone before crossing the border, synching it back up with his computer after he gets home.
"People tell me their innermost secrets," Anwar said. "I tell people to e-mail me, so a lot of personal information is in my e-mail. If people find out that this information is being looked at, I can't serve my purpose and people won't come to me."
For its part, the government argues that some of the most dangerous contraband is transported in digital form today — making searches of electronic devices a crucial law enforcement tool.
Among the successful searches the government cites from recent years: In 2006, a man arriving from the Netherlands at the Minneapolis airport had digital pictures of high-level Al-Qaida officials, and video clips of improvised explosive devices being detonated and of the man reading his will. The man was convicted of visa fraud and removed from the country.
"To treat digital media at the international border differently than Customs and Border Protection has treated documents and other conveyances historically would provide a great advantage to terrorists and others who seek to do us harm," Jayson Ahern, the agency's deputy commissioner, said in a statement submitted to the Senate Judiciary subcommittee on the Constitution in June. Homeland Security did not send anyone to testify.
Amy Kudwa, a spokeswoman for the department, also stressed that a tiny fraction of 1 percent of all travelers are singled out for laptop searches at the border. She added that Homeland Security does not profile based on religion, race, ethnicity or any other criteria in conducting such searches.
So far, only a handful of court cases have addressed the issue.
Federal appeals courts in two circuits have upheld warrantless or "suspicionless" computer searches at the border that turned up images of child pornography used as evidence in criminal cases.
But late last year, a U.S. magistrate judge in Vermont ruled that the government could not force a man to divulge the password to his laptop after a search at the Canadian border found child pornography. The U.S. Attorney's Office in Vermont is appealing the decision to the U.S. district court.
Now Congress is getting involved. A handful of bills have been introduced that could pass next year.
One measure, sponsored by Sen. Russell Feingold, D-Wis., chairman of the Constitution subcommittee, would require reasonable suspicion of illegal activity to search the contents of electronic devices carried by U.S. citizens and legal residents. It would also require probable cause and a warrant or court order to detain a device for more than 24 hours.
And it would prohibit profiling of travelers based on race, ethnicity, religion or national origin.
Rep. Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also require suspicion to inspect electronic devices. Engel said he is not trying to impede legitimate searches to protect national security. But, he said, it is just as important to protect civil liberties.
"It's outrageous that on a whim, a border agent can just ask you for your laptop," Engel said. "We can't just throw our constitutional rights out the window."
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