Most Americans, we suspect, would agree that U.S. border agents need broader latitude than other law enforcement officials in their ability to conduct searches.
The Fourth Amendment to the Constitution generally prohibits searches without probable cause and, even then, a judge must issue a warrant. Customs officers, by contrast, require the ability to search vehicles and individuals entering the country.
It’s fair to say that the rules at those inspection stations are necessarily different from the rules a foot beyond it. But that doesn’t mean they have to be unrestrained.
That is the issue regarding the authority given to customs agents to search a traveler’s laptop, cellphone or other electronic device – even keep those devices for weeks or months at a time – based on nothing more than a hunch.
The value of such searches should be obvious: Electronic devices can hold information about terrorism, child pornography and other matters of critical concern. But if they are so important, shouldn’t customs agents be trained to base their decisions to search on something more than a hunch?
The Department of Homeland Security says no, basing its decision on its own internal study. That’s hardly persuasive. Meanwhile, the American Civil Liberties Union and other groups are suing to stop the practice, arguing that “a purely suspicionless search opens the door to ethnic profiling.”
Yet, there is another way. Security agents in Israeli airports have been trained to conduct behavioral profiling that allows them to use full-body scanners as a secondary method of air travel security rather than as the primary one, as they have become in American airports.
Because American agents have not been given than kind of training, everyone is treated as a potential terrorist. Something similar occurs at land crossings when agents are poring over digital files based on nothing more than a hunch.
It’s fair to say that the hunch of a longtime law enforcement officer carries some weight. Even if he hasn’t been trained in any kind of behavioral psychology, his hunch is liable to better-informed than that of the average person.
But when the subject is keeping the country safe while, as best as possible, honoring the rights conferred by the Constitution, there is an obligation to rely on more than an agent’s hunch, however well-educated it is.
The bottom line is this: Customs and immigration officers sometimes must conduct searches that would not be allowed once a driver is past the border; that’s the nature of their work. But they need to do it right, and basing a decision to seize and search someone’s computer on nothing more than a hunch doesn’t meet that standard.