Blog of Rights

What's on Jim Carafano's Laptop?

By Noam Biale at 3:47pm

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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