Peter Swire is a Senior Fellow at the Center for American Progress Action Fund and a professor at the Moritz College of Law the Ohio State University.
Read the full testimony (pdf)
In recent months I have become increasingly aware of what I consider a deeply flawed policy. The U.S. Customs and Border Patrol now takes the position that it can seize and copy the contents of a laptop or other computing device for a traveler entering the United States, based simply on its authority to do traditional border searches.
The government seems to believe that, if they can open a suitcase at the border, then they can open a laptop as well. This simplistic legal theory ignores the massive factual differences between a quick glance into a suitcase and the ability to copy a lifetime of files from someone’s laptop, and then examine those files at the government’s leisure.
This issue has come into sharp focus since the April decision of the Ninth Circuit Court of Appeals in U.S. v. Arnold. That panel clearly ruled that CPB can seize a laptop computer at the border, and examine its contents, without any reasonable suspicion of unlawful activity. Affidavits in that case and other credible reports show that agents at the border are going further—they are requiring travelers to reveal their passwords or encryption keys so that government agents can examine the full content of the laptop or other computing device.
Other witnesses today will go into depth about crucial objections to these laptop border searches, including constitutional prohibitions under the First and Fourth Amendments, ethnic profiling, and severe impact on commercial and individual travelers who are forced to reveal confidential records to the government.
My focus is different, drawing on my personal involvement in the encryption policy battles from a decade ago. My thesis is that laptop border searches bear a striking similarity to the federal encryption policy that was attempted during the 1990s but reversed in 1999. My testimony presents a brief history of these “crypto wars,” as they were called. In particular, the testimony describes the so-called “Clipper Chip,” where the government hoped to gain the encryption keys in advance for telecommunications devices. The testimony then examines eight precise analogies between the failed encryption policy of the 1990s and laptop border searches. For each of the eight critiques, the testimony explains how the critique applied to encryption policy and how the same argument applies to today’s border searches:
1. Traditional legal arguments apply badly to new facts about computing
2. Government forces disclosure of encryption keys
3. Severe violation of computer security best practices
4. U.S. policy creates bad precedents that totalitarian and other regimes will follow
5. Severe harm to personal privacy, free speech, and business secrets
6. Disadvantaging the U.S. economy
7. Political coalition of civil liberties groups and business
8. Technical futility of U.S. policy
Since I became aware of the issue of laptop border searches I have spoken to an array of businesspeople, computer security experts, civil liberties advocates, and ordinary people who hear what the government is doing. The reaction has been uniform: “The government is doing that? They are just stopping people at the border, opening people’s laptops and making copies of what’s inside? It could happen to anyone, even if they’ve done nothing wrong? That is simply not right.”
I hope today’s hearing will be an important step toward curbing the current practices.
Read the full testimony (pdf)
Peter Swire is a Senior Fellow at the Center for American Progress Action Fund and a professor at the Moritz College of Law the Ohio State University.