Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Subcommittee On The Constitution
“Laptop Searches And Other Violations Of Privacy Faced
By Americans Returning From Overseas Travel”
June 25, 2008
I am glad Senator Feingold has convened this important hearing to
examine intrusive practices by the Department of Homeland Security
at our Nation’s ports of entry. These practices affect the privacy
interests of American citizens.
Americans understand that it is the Federal Government’s
responsibility to ensure that anyone entering the United States
complies with the law. There is no dispute about this basic
principle. But Americans also want their government’s policies to
respect and preserve our civil liberties. The government should not
base its policies on racial profiling, act capriciously or be
unnecessarily intrusive.
I share the concerns of privacy advocates about reports of highly
intrusive searches carried out against American citizens returning
home from abroad. In some instances, these searches are carried out
based upon no reasonable suspicion, and delve deeply into the
personal information of American citizens. In other instances,
citizens have felt that the country to which they traveled or their
personal appearance was the basis for increased scrutiny. When DHS
officials routinely read the email, handwritten notes, and computer
files of law-abiding Americans as they reenter the country,
Americans are right to question this practice. And when DHS
officials question Americans about their religious or political
beliefs, and demand details of whom they met and where they slept
during travel abroad, Americans are right to raise questions.
Two Circuit Courts of Appeal have held that the Fourth Amendment
does not require any reasonable suspicion to search and seize the
contents of any electronic device, including a laptop computer,
belonging to an American citizen returning to the United States from
abroad. It may surprise many Americans that their basic
constitutional rights do not exist at our ports of entry even to
protect private information contained on a computer. It concerns
me, and I believe that actions taken under the cover of these
decisions have the potential to turn the Constitution on its head.
Despite the extraordinary authority such rulings have sustained for
the Department of Homeland Security, the administration and the
Department’s use of this power must be held to a standard consistent
with our constitutional values. Where there are no constitutional
safeguards, the environment becomes ripe for abuses, including
racial, religious, and ethnic profiling. And by many accounts from
business travelers and others, these practices are occurring.
American citizens subjected to practices that the Constitution would
forbid anywhere else in the country have the right to be aware of
the official policy and the rationale underlying the practice.
Advocates have raised many very relevant questions about these
practices: How are individuals singled out for additional scrutiny?
Where does any information go that is copied from a citizen’s
computer or electronic device? How does the agency dispose of
gathered information that does not violate any law? How does the
agency ensure that sensitive or proprietary information is not
released? In what cases does the Department deem it relevant to
interrogate a citizen about their religious or political beliefs?
These are legitimate questions that need to be answered.
Privacy advocates have attempted to use the Freedom of Information
Act (FOIA) to obtain the DHS policy with respect to questioning
about religious and political beliefs and searches of handwritten
materials or electronic equipment such as telephones, personal
electronic devices, and computers. The DHS has not been forthcoming
with this policy information and advocates have now sued to compel
the agency’s response. Americans are much more likely to tolerate
security measures when they know that the basis for them is
legitimate, and when their execution is reasonable. If a Federal
agency bases its policy on racial or religious profiling, in the
absence of any reasonable, particularized suspicion and contrary to
our values, Americans are right to ask questions and demand
justification.
I hope that today’s hearing will help us understand the implications
of these practices on privacy and civil liberties interests, as well
as on business and economic concerns. Americans want security, but
they also want a Federal Government that respects the diversity and
privacy of its citizens.
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