Jul 11th, 2008
Posted by Noam Biale at 3:47pm	Technology and Liberty

What's on Jim Carafano's Laptop?

He doesn't mind you knowing. In fact, he thinks it would be totally reasonable for you to seize and copy the contents, provided you're a government official and he's crossing the border.

In recent testimony, and in an article in yesterday's Christian Science Monitor, James Jay Carafano of the Heritage Foundation called it "unrealistic to require probable cause" for such searches, and argued that privacy protections would "create some kind of sanctuary for criminals and terrorists to carry things across the border."

First of all, not all terrorists are stupid – the ones that try to set their shoes on fire notwithstanding. One of the nice things about electronic data is that you can transport it…electronically! Any terrorist carrying copies of nefarious schemes across the border on a Blackberry is going to be pretty ineffective as a covert operative. And if there are terrorists who are so dangerous that we can justify seizing a laptop-full of their plots, why are we letting them into the country at all?

To be fair, we don't always know who the terrorists are. So is the solution to search every laptop and cell phone, hoping to uncover an Outlook calendar entry that says "8 a.m.: Coffee and Bagel; 9 a.m.: Blow up Sears Tower?" An all-invasive approach that treats everyone like a suspect is not a smart trade-off for the miniscule chance that we'll catch a break like that. The costs of such a policy are high: it gives terrorists a strong ideological advantage by portraying our country as oppressive and demagogic, rather than free and open, and, as the Association of Corporate Business Travelers has explained, diminishes our capability to do business with the rest of the world, whether it's American businesses sending employees to other countries, or foreign investors bringing their Euros, yen and shekels here.

The danger for businesses trying to keep trade secrets is one of the reasons that the Transportation Security Administration disavowed the policy of confiscating laptops, saying this ugly stepchild belonged to Customs and Border Patrol. One wonders why a scholar at an organization supposedly dedicated to free enterprise would support such a hostile policy towards business.

But besides the costs to our economy (which last time I checked did not need the government's help to take a nosedive), there are some basic principles at work here. Basic American principles of privacy and liberty from unreasonable searches (such as scanning your entire hard drive – a digital space more analogous to a home than a briefcase) and seizures (storing that information, and often the actual hardware, for indefinite periods), should not evaporate at the border.

To be sure, there are reasonable searches that should be conducted at ports of entry. We don't want people bringing weapons or dangerous materials into the country, for example. But those things are very different from data – they are inherently dangerous and not protected by the First Amendment.

Probable cause is not just a legal formality, but actually helps to keep us safe by focusing our security resources away from innocent people and improving our overall safety. Security experts have recognized the need for a Constitutional bedrock to our pursuit of the war on terror. Among the fundamental principles that should guide us are:

• Any intrusion on liberty should be justified by its proven effectiveness.
• Intrusions should be minimized to the extent possible while maintaining effectiveness.
• If there are less intrusive means for achieving the same security goal, these should be the preferred means.

These aren't just the ACLU's ideas for preserving civil liberties while ensuring safety, much as we'd like to claim credit. In fact, they're from Winning the Long War: Lessons from the Cold War for Defeating Terrorism and Preserving Freedom, by none other than James Jay Carafano and former Heritage Fellow Paul Rosenzweig (now waging that war, while sporting a spiffy bowtie, at the Department of Homeland Security).

The all-invasive laptop and cell-phone screening policy that Carafano has been defending in recent weeks fails every test he lays out in Winning the Long War. If you don't believe me, check out page 95 of the book, "Principles for Preserving Security and Civil Liberties." You can get a copy at your local bookstore, or, if you’re a customs agent, just wait until Carafano takes an international trip: He's probably got a free copy somewhere on his laptop.

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1. rafflaw Says:
   Jul 12th, 2008 at 7:12pm

   The reason that Carafano is now espousing warrantless searches of electronic data at the border when he was against it before is because he is part of the Bush regime and only their friend's corporate secrets are safe. This is another example of fear being used by the Bush neocons to take away more of our freedoms for their gain.

2. CamanoCal Says:
   Jul 14th, 2008 at 1:33am

   When in the course of human events it becomes necessary for one nation to dissolve the political bands that bind them to another --->
   Are we there yet?
   WA-AK-OR-CA.

3. JohnB Says:
   Jul 15th, 2008 at 11:41am

   I agree with the above, it is absurd to think this will catch anyone, and frankly, with the knowledge out there it would be quite easy to turn the laptop over and still have "nefarious plans" encrypted on the drive.
   How much space does a terrorist plot take up? Not much.
   Me thinks this has more to do with the likes of the RIAA and the MPAA than with any terrorist agenda.

4. DIEDRA Says:
   Jul 19th, 2008 at 3:22pm

   He has probably forgotten what he wrote in Winning the Long War and he has been at Heritage for another 2 years so they have had longer to work on his brain. He says its ok to let strange officials look at his outlook but he won't even let his wife see his calendar.

5. James Carafano Says:
   Jul 22nd, 2008 at 4:30pm

   Sadly, this post is more fantasy than fact.

   The purpose of the searches is to prevent criminal activity. In one recent case, officers found a traveler's computer loaded down with child pornography. The ACLU criticism seems strange, since all that I did was point out that the courts have ruled that officers have a legal right to conduct these searches and that since malicious actors including criminals and terrorists often store material related to their crimes on computers searches seem a perfectly reasonable thing to do. I wrote: "Terrorist threats aside, there are numerous other criminal and malicious activities that routinely seek to exploit the relative freedom of traversing US borders. There is a rampant problem of drug, weapons, and human trafficking which occur at our borders."

   I also argued that CBP ought to establish clear and reasonable standards to ensure that the material taken in any search was handled appropriately including respecting information and property of individuals. I wrote: "It is important that we take into consideration concerns over privacy when conducting searches on an individual's laptop, and thus this practice should be done in a responsible manner. The best strategy to secure this country is a layered and risk-based approach." The ACLU ignored this part of my testimony.

   While the ACLU blog attempted to make me out as an enemy of civil liberties and privacy (not to mention criticizing my co-author’s bowtie, clearly an important aspect of the issue), my testimony before the Committee on the Judiciary argued anything but—while privacy is an important issue that should not be brushed aside, the right approach is to develop policies that serve security, liberty, and prosperity equally well. I wrote: "The public policy debates about security and civil liberties are often framed in a zero sum context—where any advance in national security policies necessarily comes at the expense of civil liberties. In practice, however, good public policies equally advance the causes of enhancing public safety and security and protecting individual liberties."

   The irony is the ACLU blog post in fact highlights one of the major recommendations in Winning the Long War “ --any intrusion on liberty should be justified by its proven effectiveness.” Searching laptops at the border is effective in keeping dangerous people and information out of the United States.

   If the bloggers at the ACLU spent more time looking after real civil liberty issues than trying to demonize Heritage analysts the national discussion over how to keep America safe, free, and prosperous might be a lot more constructive.

6. * Says:
   Aug 1st, 2008 at 9:13am

   That's crap, Jim. Your opinion is incorrect, and your veiled lack of concern over American rights values is outright unpatriotic. The only constructive thing you could add to the national discussion over how to keep America safe, is your absence from that discussion.

7. Anonymous Says:
   Aug 1st, 2008 at 5:09pm

   Spin it all you want to, Mr. Carafano, but you're allowing the government a free voyer pass with no suspicion about us at all.

   This idea is un-American all day long.

8. Anonymous Says:
   Aug 4th, 2008 at 4:09pm

   And it's also now completely legal. the TSA can take your laptop for absolutely no reason, for as long as they want, or forever. That's it. End of story.

   Where the HELL is the outrage?

9. DavidWS Says:
   Aug 8th, 2008 at 7:48am

   My question is whether or not the ACLU will (rightly) sue to have this unconstitutional law revoked - due process isn't an option under the constitution - it is REQUIRED.

10. Rob Says:
    Oct 2nd, 2008 at 4:18am

    @Anonymous:

    About the same way the Roman Empire went: the outrage will present itself by other countries ignoring (and perhaps even loathing) the US, the dollar and their so-called "constitutional rights". You have just watched your banking system go to peaces, if you let your government continue watch the sequel.

    One very big misunderstanding: Constitutional Rights first and foremost protect the State not their Citizens (let this statement sink in before responding). An incident is just a lame excuse for every dictator(ial regime).

    Reread the work of your founding fathers, please.

    A foreigner...