Opening
Statement of U.S. Senator Russ Feingold
Hearing On “Laptop Searches and Other Violations of Privacy
Faced by Americans Returning from Overseas Travel”
Senate Judiciary Committee, Subcommittee on the Constitution, Civil
Rights and Property Rights
As
Prepared for Delivery
June 25, 2008
“If you asked most
Americans whether the government has the right to look through their
luggage for contraband when they are returning from an overseas trip,
they would tell you yes, the government has that right. But if you asked
them whether the government has a right to open their laptops, read
their documents and e-mails, look at their photographs, and examine
the websites they have visited, all without any suspicion of wrongdoing,
I think those same Americans would say that the government absolutely
has no right to do that. And if you asked them whether that actually
happens, they would say, ‘not in the United States of America.’
“But it is happening.
Over the last two years, reports have surfaced that customs agents have
been asking U.S. citizens to turn over their cell phones or give them
the passwords to their laptops. The travelers have been given a choice
between complying with the request or being kept out of their own country.
They have been forced to wait for hours while customs agents reviewed
and sometimes copied the contents of the electronic devices. In some
cases, the laptops or cell phones were confiscated, and returned weeks
or even months later, with no explanation.
“Now, the government
has an undeniable right and responsibility to protect the security of
our borders. The Supreme Court has thus held that no warrant and no
suspicion is necessary to conduct, quote, ‘routine searches’
at the border. But there is a limit to this so-called ‘border
search exception.’ The courts have unanimously held that invasive
searches of the person, such as strip searches or x-rays, are ‘non-routine’
and require reasonable suspicion. As the Supreme Court has stated, these
searches implicate “dignity and privacy interests” that
are not present in routine searches of objects.
“So the constitutional
question we face today is this: When the government looks through the
contents of your laptop, is that just like looking through the contents
of a suitcase, car trunk, or purse? Or does it raise dignity and privacy
interests that are more akin to an invasive search of the person, such
that some individualized suspicion should be required before the search
is conducted?
“This administration
has argued in court that a laptop can be searched without any suspicion
because is no different from any other, quote, ‘closed container.’
I find that argument disingenuous, to say the least. The search of a
suitcase – even one that contains a few letters or documents –
is not the same as the search of a laptop containing files upon files
of photographs, medical records, financial records, e-mails, letters,
journals, and an electronic record of all websites visited. The invasion
of privacy represented by a search of a laptop differs by an order of
magnitude from that of a suitcase.
“Ultimately, though,
the question is not how the courts decide to apply the Fourth Amendment
in these uncharted waters. I guarantee you this: neither the drafters
of the Fourth Amendment, nor the Supreme Court when it crafted the ‘border
search exception,’ ever dreamed that tens of thousands of Americans
would cross the border every day, carrying with them the equivalent
of a full library of their most personal information. Ideally, Fourth
Amendment jurisprudence would evolve to protect Americans’ privacy
in this once unfathomable situation. But if the courts can’t offer
that protection, then that responsibility falls to Congress. Customs
agents must have the ability to conduct even highly intrusive searches
when there is reason to suspect criminal or terrorist activity, but
suspicionless searches of Americans’ laptops and similar devices
go too far. Congress should not allow this gross violation of privacy.
“Aside from the privacy
violation, there is reason for serious concern that these invasive searches
are being targeted at Muslim Americans and Americans of Arab or South
Asian descent. Many travelers from these backgrounds who have been subject
to electronic searches have also been asked about their religious and
political views. As we’ll hear today, travelers have been asked
why they chose to convert to Islam, what they think about Jews, and
their views of the candidates in the upcoming election. This questioning
is deeply disturbing in its own right. It also strongly suggests that
border searches are being based at least in part on impermissible factors.
“The disproportionate
targeting of this group of Americans does not mean that other Americans
are exempt. The Association of Corporate Travel Executives has surveyed
its members, and seven percent of business travelers who responded to
the survey had experienced seizures of their laptops or other electronic
equipment. That’s an incredible number, when you consider how
many Americans are required to undertake overseas business travel today
and the amount of confidential business information stored on their
laptops. As we’ll be hearing today, the problem is large enough
to have a real impact on the way Americans do business.
“Americans have tried
to find out from DHS what its specific policies are on searching and
seizing electronic equipment at the border. Two non-profit organizations
filed a Freedom of Information Act request in October 2007 to get DHS
to turn over its policies. Eight months later, DHS has not complied
with that request. My own questions for Secretary of Homeland Security
Michael Chertoff on this issue, which I submitted to him in early April
after his appearance at an oversight hearing held by the full Judiciary
Committee, have not been answered, despite my specific request that
they be answered before this hearing.
“I asked DHS to send
a witness to testify today. DHS responded that its preferred witness
was unavailable on the day of the hearing. I asked DHS to send a different
witness, but DHS declined. I felt it was so important to have a DHS
witness here that I wrote a letter to Secretary Chertoff last week urging
him to reconsider. That letter will be made part of the hearing record.
I would put the Secretary’s response in the record, as well, but
he has not responded.
“DHS did provide written
testimony. That testimony, which incidentally was submitted over 30
hours later than the committee’s rules require, provides little
meaningful detail on the agency’s policies and raises more questions
than it answers – questions that no one from DHS is here to address.
“Needless to say,
I’m extremely disappointed that DHS would not make a witness available
to answer questions today. Once again, this administration has demonstrated
its perverse belief that it is entitled to keep anything and everything
secret from the public it serves and their elected representatives,
while Americans are not allowed to keep any secrets from their government.
That’s exactly backwards. In a country founded on principles of
liberty and democracy, the personal information of law-abiding Americans
is none of the government’s business, but the policies of the
government are very much the business of Congress and the American people.”
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