American air travelers are subject by law to a comprehensive check of their person and luggage before boarding any aircraft. But what about the data contained on a passenger's laptop computer?  Is it subject to the same scrutiny as his/her physical possessions?

Federal agents are allowed to ask passengers to activate a device to ensure that it functions as it appears (as a laptop and not a bomb).  For some agents, a glowing desktop isn't proof positive of a clean computer and further digging is required. U.S. Customs and Border Protection (CBP) claims that computer files are no different than physical files, and that their agents should be allowed to review the contents of something that could pose a potential security risk. Travelers returning to the United States from abroad are often subject to a check of their laptop's hard drive.

The practice has sparked debate over how the far the government should be allowed to intrude into an individual's personal life.  Privacy advocates, such as the Electronic Privacy Information Center (EPIC), define the contents of a computer as something deeply personal, given that hard drives may contain social security numbers, bank statements, legal documents, personal correspondence, and legal pornography. These organizations allege that granting customs agents access to these contents is akin to having Uncle Sam thumbing through your diary or viewing your personal thoughts. 

"The problem is," EPIC Associate Director Lillie Coney told OhMyGov!, "that passengers are unaware that the CBP has that right [to view laptop contents] until they get to the airport. And you take a passenger on a make-or-break business trip who has valuable business-related documents on his laptop; what other choice does he have than to cooperate with a search of his personal information?"

The most notorious case that calls this debate into question concerns the July 2005 arrest of Michael T. Arnold, an American citizen who returned from the Philippines to Los Angeles International Airport with child pornography on his laptop. CBP agents inspected his laptop and arrested him after uncovering the images. When Arnold's attorneys claimed that his Fourth Amendment right to security against unreasonable search and seizure had been violated, L.A. District Judge Dean Pregerson agreed.

"While not physically intrusive as in the case of a strip or body cavity search, the search of one's private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person," said the Judge. 

The ruling was quickly attacked in the appeal, and the same debate has surfaced in similar cases across the country without any conclusiveness.

Privacy isn't the public's only concern. CBP may also confiscate laptops if so moved, abruptly depriving the passenger of their property and-if files haven't been backed up-their information.

According to Susan Gurley, executive director of the Association of Corporate Travel Executives, members of her organization have had their laptops held for up to a year without explanation. Given the standard bureaucratic complications, and knowing that the Transportation Security Administration lost a hard drive containing 100,000 of its own employee records last year, owners of the confiscated laptops are not optimistic they'll ever see their possessions again.

The Federal Government and its customs agencies have their priority: to protect the American public.  But if protecting the public entails violating the right the Fourth Amendment provides people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," how should those charged with domestic security know when to say "enough."  While we'd like to believe security screeners have the ability to institute laptop searches and confiscations only in circumstances where there is adequate probable cause, the harsh reality is that if you give any person the task of protecting the innocent from the wicked, they will always make decisions that err on the side of caution.  And in this situation, such caution leads to violation of personal property. 

Unless physical evidence is found on the person carrying the laptop, or inside the laptop (as seen on the X-ray), which warrants further investigation, routine hard drive screening, randomly selected hard drive screening, or any other prying into the private holdings of these possessions should not be permitted.  These days, people are much more likely to confide in their laptops than their spouses.  So the courts need only ask one question in making their final decision: Would you want strangers in airports listening to everything you said to your spouse in your most private moments?