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Searching a laptop not same as searching a backpack
From: David Farber <dave () farber net>
Date: Thu, 7 Aug 2008 16:53:50 -0700

From: Peter Swire [peter () peterswire net]
Sent: Thursday, August 07, 2008 7:44 PM
To: David Farber
Subject: [IP] Searching a laptop not same as searching a backpack


        Here are some responses to Rob Atkinson's question about why searching a laptop is different from traditional 
border searches:

        "Note To DHS: Searching A Laptop Is Not The Same As Searching A Backpack" -- 

    1. Laptop searches last far longer. The backpack search is complete when the traveler leaves the border. For a 
typical laptop, the government can make a copy and then search every file at its leisure.

    2. It's like searching your home. Our laptops contain family photos, medical records, finances, personal diaries, 
and all the other detailed records of our most personal lives. Having the government rummage through all these files is 
like searching your home, and that requires a probable cause warrant.

    3. Confidential and privileged information. Many kinds of confidential information are in laptops, including 
journalists' notes about an investigative story, trade secrets and other key business information, and many more. 
Lawyers' laptops contain attorney-client privileged information, as reinforced by a recent case that says the privilege 
is lost once the government sees a file during a search.

        The post encourages readers to post additional differences at the Homeland Security thread on this topic: 


Prof. Peter P. Swire
C. William O'Neil Professor of Law
   Moritz College of Law
   The Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net

Their basic point remains the same ­ customs has checked people¹s items at the
border for 200 years, so they can check your laptop.

It's not a bad point and Jayson Ahern's explanation sounds pretty
reasonable. Is there a decent rebuttal? Does anyone believe that Customs
shouldn't search briefcases and luggage?

In response to your first post that started the earlier string on the topic,
Dave posted my comment which said, in part,:

So, for those IPers who are aghast at the current situation, what is the best
argument for distinguishing a laptop from a briefcase or luggage and the best
argument that a laptop is so "personal" that a search of a laptop is similar to
a body cavity search? (And is there is valid difference between a "business"
laptop (more like a briefcase?) and a "personal" laptop
(more like a body cavity?) and how would Customs be able to distinguish between
them without looking inside?)

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