If someone develops a practical mind-reading device, you can expect the Department of Homeland Security to argue that skulls are merely another "closed container" that officers guarding the border may search at will. After all, government agents have long been allowed to read documents in briefcases carried by Americans returning from abroad. Why should the medium in which information is stored make a constitutional difference?
That argument is only slightly more far-fetched than the one DHS uses to justify its policy regarding border searches of laptop computers. Given the nature and quantity of the data they contain, portable computers are in many ways extensions of our brains. Yet DHS is treating them as if they were no different from purses or fruitcake tins.
Recently publicized DHS guidelines confirm that the department for years has been examining the contents of computers at airports and other points of entry "absent individualized suspicion." The guidelines say officers "may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search," which "may take place on-site or at an off-site location."
In practice, this means a customs agent can seize your computer for any reason or no reason at all. He may rummage through your files while you stand there, hoping nothing embarrassing pops up, or he may take the computer to a back room. It may disappear for weeks or months as its contents are copied, analyzed and shared with various federal agencies trying to determine whether you've broken any laws.
DHS hasn't said exactly how common these searches are. But when the Association of Corporate Travel Executives surveyed its members in February, 7 percent of the respondents said their laptops or other electronic devices had been seized.
As anyone whose computer has been stolen or irreparably damaged can testify, it's a traumatic experience to suddenly lose this crucial repository of your personal and professional life, which may include confidential work in progress; sensitive financial, medical and educational records; and years of photos, music, notes, journal entries and correspondence. Knowing that government agents are perusing and passing around this information makes the experience even less pleasant, especially when you realize that your hard drive also contains traces of files you've deleted and websites you've visited.