Travelers' Privacy Protection Act of 2008

On September 29, 2008, the Travelers' Privacy Protection Act of 2008 was introduced in both Senate (as S. 3612) and House of Representatives (as H.R. 7118). The legislation is intended to limit searches of United States residents' laptop computers at US border crossings. The Travelers' Privacy Protection Act of 2008 rejects the US Department of Homeland Security, Customs and Border Protection (CBP) policy published on July 16, 2008. Senator Russ Feingold's (D-WI) website quotes Senator Feingold:

Most Americans would be shocked to learn that upon their return to the U.S. from traveling abroad, the government could demand the password to their laptop, hold it for as long as it wants, pore over their documents, emails, and photographs, and examine which websites they visited – all without any suggestion of wrong-doing. Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy. This bill will bring the government’s practices at the border back in line with the reasonable expectations of law-abiding Americans.

I must not be most Americans.

US courts have consistently held that Constitutional protections are minimal when applied to an individual seeking to enter the US. You get the basic black-letter protections, without the frills of interpretation and precedence established for folks already admitted to and acting in the US. For example, a CBP officer has no obligation to give you a Miranda warning when questioning you at the border. You have a very basic Fifth Amendment right against self-incrimination. If you refuse to answer a CBP officer's question, the CBP officer can deny you entry into the US, or can detain you without any other cause for a limited period before denying you entry into the US. The same is true of your Fourth Amendment right against unreasonable search and seizure; the difference being that at the border, it is not unreasonable for a CBP officer, without suspicion or probable cause, to search your person and your property. For as long as there have been sovereign territories, subjecting oneself to inspection has been the regular price of admission.

The proposed legislation's title - the Travelers' Privacy Protection Act of 2008 - belies its misguided (though well-intended) underpinnings. Any right to privacy is premised upon an expectation of privacy. What person is so great that he or she deserves privacy at the time he or she seeks admittance to these United States? What person is so ego-centric that he or she expects to be able to invoke a right to privacy in response to a CBP officer's inquiry? It is the duty of every law-abiding US resident to suffer the pains and tolls attendant to a CBP officer's inquiry in order to collectively combat those unsavory elements - some of whom are homegrown - from capitalizing on our aspirations toward absolute freedom to further their illicit transnational schemes.

Hindering CBP with new requirements for warrants, additional supervision, and ethereal thresholds will very likely achieve a liberalization of traveler scrutiny at the border. But what new freedoms next will be pursued? Will cargo owners get their own legislation to thwart inspections of containers at the border on the same grounds of a right to privacy? Is liberalizing the border truly in the nation's best interest? Or could it be that more aggressive weeding at the fringes nurtures the most positive and productive growth in the interior?

To relate all of this back to export compliance, some industry leaders have recognized an increase in searches and seizure of electronic devices and their contents - both in the US and abroad. In order to protect company proprietary and customer-sensitive information, company's have instituted rules requiring employees traveling internationally to carry sanitized laptop computers with only the minimum required load of software and data. It seems to me that this industry best practice could be adopted by individuals, too.

Vote "No" on the Travelers' Privacy Protection Act of 2008!