How Is This Not Thought Policing?

Mike Riggs | August 1, 2008

Someone suggested to me yesterday that the concessions Americans are asked to make in order to fly from state to state or out of the country pale in comparison to those made in a country like Israel, where terror isn't a threat, but a daily reality. I'll concede that I prefer getting the wand from a disgruntled TSA employee to Katyusha rocket fire from Islamic militants, but I also think the Department of Homeland Security should have a justifiable reason for its policies, the newest of which, supported by the 9th Circuit Court of Appeals ruling in April, allows the confiscation of one's laptop:

Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

The policies state that officers may "detain" laptops "for a reasonable period of time" to "review and analyze information." This may take place "absent individualized suspicion."

The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "

The assertion that traveling outside the country negates a U.S. citizen's unenumerated right to privacy is bogus. "The government has other ways of getting what's on your laptop even when you're not traveling." That is absolutely true...with a warrant or a subpoena. And I hate to be the guy that asks the dumb question, but where's the immediate threat? A body search could reveal plastic explosives, an uber sharp steak knife, a disassembled firearm, or a spool of sharp dental floss, but what's the harm in a flash drive loaded with the Colonel's secret recipe or a Harlequin romance novel? Oh, right, this isn't about the immediate threat. This is about fighting terror through engendering paranoia in the very people DHS intends to protect. (Mike Masnick at Techdirt deconstructs DHS' dubious rationale here.)

And seeing as agencies can share the information they confiscate, what's to keep the DHS from forwarding evidence of your illegally downloaded music library to the FBI? Somewhat less scary—what would stop some conniving government tool from ripping that erotic home video you and the honey made, and anonymously posting it on Youporn.com?

Check out reason's expose on TSA here. I blogged on the TSA here. DHS Friday Funny here. Jonathan Rauch on dumb DHS policies here.