In a July, 2008 Senate hearing, then-Sen. Russ Feingold hosted the Association of Corporate Travel Executives, which vehemently opposes this practice, and Feingold said this:

Over the last two years, reports have surfaced that customs agents have been asking U.S. citizens to turn over their cell phones or give them the passwords to their laptops. The travelers have been given a choice between complying with the request or being kept out of their own country. They have been forced to wait for hours while customs agents reviewed and sometimes copied the contents of the electronic devices. In some cases, the laptops or cell phones were confiscated and returned weeks or even months later, with no explanation.

Back then, this was painted as yet another Bush/Cheney assault on civil liberties, so one frequently heard denunciations like this from leading Democrats such as Sen. Pat Leahy:  ”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.”  But now that this practice has continued — and seemingly expanded — under the Obama presidency, few in Congress seem to care.

Indeed, even in the wake of increasing complaints, Congress has done nothing to curb these abuses or even regulate them.  But at least one member of the House, Rep. Loretta Sanchez, a California Democrat, is attempting to do something.  Rep. Sanchez has introduced a very modest bill — H.R. 216 — requiring Homeland Security to issue rules governing these searches and seizures so that they are no longer able to operate completely in the dark and without standards.  The bill would also impose some reporting requirements on DHS (Section 4); provide some very modest rights to those subjected to these seizures as well as some minor procedural limits on DHS agents (Sec. 2); and would compel “a civil liberties impact assessment of the rule, as prepared by the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security” (Sec. 2(b)(9)).

Yesterday, I spoke with Rep. Sanchez about her bill, and the 8-minute interview can be heard on the player below.  I actually anticipated this interview would be somewhat confrontational because I think this bill — though well-intentioned — is woefully inadequate and potentially even counter-productive.  The bill does not in any way curb the central abuse:  Homeland Security’s seizure of people’s property without any probable cause or even reasonable suspicion (a bill introduced by then-Sen. Feingold would have barred all such searches in the absence of reasonable suspicion).  Rep. Sanchez’s bill also leaves it up to DHS to promulgate its own rules rather than having Congress fulfill its oversight duties by imposing rules on the agency.  And worst of all, the bill could be seen as codifying — granting the Congressional stamp of approval and thus strengthening — Homeland Security’s power to conduct these suspicionless seizures.

But the more I listened to her, the more I thought that perhaps this is a good first step — at least arguably better than nothing (I’m still ambivalent on that question).  At the very least, this bill would force into the sunlight information about what DHS is actually doing, perhaps generating some controversy and enabling more stringent restrictions.  It would provide some formal mechanism for citizens to complain about abuse and try to have their laptops returned (though, as computer expert Jacob Appelbaum told me, he would never trust a laptop hard drive that had been in the custody of government agents, as it could easily be fixed, without detection, to surveil all future use).  And it would impose at least some guidelines against invading attorney/client communications, medical information, and other sensitive data (though without any enforcement mechanism, it’d be less like a requirement and more like a suggestion that would likely be ignored). 

One point Rep. Sanchez emphasized is that even if she wanted a stronger bill (and it seems clear she does), the chance of enacting it in the GOP House is very small.  After all, the Democratic Congress did nothing about this problem.  But that underscores one amazing point:  the right-wing of the Republican Party and its “Tea Party” faction endlessly tout their devotion to limited federal government powers, individual rights, property rights, and the Constitution.  If they were even minimally genuine in those claims, few things would offend and anger them more than federal agents singling out and detaining whichever citizens they want, and then taking their property, digging through and recording their most personal and private data — all without any oversight or probable cause.  Yet with very few exceptions (a few groups on the Right, including religious conservatives, opposed some excesses of the Patriot Act, while the small libertarian faction of the GOP oppose many of these abuses), they seem indifferent to, even supportive of, the very policies that most violently injure their ostensible principles.

My interview with Rep. Sanchez: