In this day and age, people traveling through U.S. airports are accustomed to tolerating intrusive actions undertaken by government officials, actions that in other circumstances would appear transparently unconstitutional. When you’re walking down the street with a briefcase, for example, you probably don’t expect your bag to be searched by a law enforcement official in the absence of probable cause. When you’re going through the security gates at an airport, on the other hand, you’re most likely resigned to the fact that your bag will be searched, regardless of whether there is a reason to do so.
But what about your computer or cell phone, with the overwhelming amount of personal information it contains – would you expect that to be searched? Even if you’re traveling through an airport, you probably don’t.
But you should.
And that’s why you need to heed the story of Lisa Wayne.
Wayne is an attorney – in fact, somewhat ironically, she’s the president-elect of the National Association of Criminal Defense Lawyers. In August 2008, she was traveling home to Denver from Mexico, where she was attending a program sponsored by, again, ironically – or perhaps fortuitously – the National Institute of Trial Advocacy. Upon arriving in Houston, Wayne was asked by airport officials to turn on and log into her laptop. She complied (something she has since said she wouldn’t do again), and the officials took the computer out of her site for 30 minutes.
In 30 minutes, a lot of electronic information can be searched and copied, and think about the personal data you carry in digital form through an airport on your travels. Even if you only have a simple phone without internet access, all of your contacts could be accessed, searched, and copied, revealing your acquaintances’ phone numbers, email addresses, and even home addresses. And of course, the seriousness of the search has the potential to become greater the more advanced the technology.
And here’s the real kicker: your electronic devices can be searched by airport security without any evidence of wrongdoing. Just by virtue of traveling through an airport, you apparently consent to a thorough search of your electronic property should airport officials deem this appropriate (whatever that means). Whither the Fourth Amendment, that steady bulwark fashioned in the name of keeping free people free?
So, there appears to be a serious problem, and it is in recognition of this problem that Wayne has filed a lawsuit, along with several other plaintiffs, that seeks to restrict airport searches of laptops, “smart” phones, and other electronic devices.
More specifically, the complaint, which was filed earlier this week in the Eastern District of New York, asks the court to stop the way electronic searches are currently conducted by the U.S. Department of Homeland Security and its components.
The American Civil Liberties Union is representing the plaintiffs, which are composed of the National Association of Criminal Defense Lawyers (of which Lisa Wayne is the president-elect), a group of photographers, and a doctoral student.
The result of this lawsuit could dramatically effect what you are legally subject to while traveling through an airport. Without any reason whatsoever, can an airport official pull you aside, take your laptop, and search and copy at least some of its vast amount of personal information, like confidential business data and private correspondence (to name but two of the more nocuous sources that officials could pull information from)?
Could you, in other words, end up like the roughly 6,500 people (nearly half of which are U.S. citizens) whose electronic devices were searched between October 2008 and June 2010? That’s right, this is not a fate that befalls only a few harassment-prone individuals. There are many Lisa Waynes among us.
As the legal drama unfolds, our hope is that clearer guidelines will be set that protect completely innocent people from having their electronic personality searched, copied, and defiled, while still permitting security officials to conduct electronic searches when necessary. (There can be no doubt that this is hugely helpful tool to combat terrorism and other threats that are linked to airport travel.) Needless to say, the appropriate balance between these two competing interests will be difficult to arrive at, as are any satisfactory policies that attempt to simultaneously preserve liberty and promote national security, but the lawsuit filed today in New York is a step in the right direction, by which we only mean a step away from current airport practice.
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