I think the practical issues with this go way beyond a simple matter of whether or not it was reasonable under the circumstances to deny this couple access to the USA.
CBP claims broad authority to seize and perform detailed searches of travelers personal laptops, cellphones, and other electronic devices, at random, with absolutely no requirement that the circumstances reach a certain minimum standard of suspicion. CBP could seize EVERY laptop that enters the country under their interpretation of US policy and Constitutional law.
If all that it takes is a single sarcastic comment on Twitter for Americans to find their laptops seized and all of their private email, writings, and other documents subjected to detailed inspection by the Government the next time they go on an overseas vacation, there is absolutely no question that this will have a significant negative impact on the freedom of expression in this country. No question.
(In this case there is nothing that indicates that laptops were seized or searched. However, CBP argues that there are no meaningful limits to their power to search the content of electronic devices at the boarder. Therefore, if Twitter comments are leading to CBP searches, it is inevitable that some of those searches will include electronics.)
CBP’s powers have expanded radically in the past decade as a consequence of technological accidents, deferential court rulings in the wake of 9/11, and supportive federal policy. When you start seeing people self censor for fear of misinterpretation by CBP, you are now firmly in territory where our basic freedoms as Americans are in jeopardy. CBP’s job is obviously important and necessary, but just like other kinds of law enforcement, it can be done with reasonable limits that are also necessary to protect our country’s freedoms and identity.
Something must be done now to reign this in and set reasonable, objective limits that protect people’s basic constitutional rights.
