Yesterday the Washington Post reported on policy changes at the Department of Homeland Security that allow the government to “copy books, documents, and the data on laptops and other electronic devices without suspecting a traveler [crossing an international border] of wrongdoing.”

This policy confirms what anecdotal reports given by those crossing the border have suggested, namely that the government is now engaged in wide-ranging searches of the written and other materials that people bring across the boarder.

The government didn’t used to do this, and for good reason.  Not only do such searches implicate our Fourth Amendment rights (there is a right to be free from unreasonable searches and seizures and having your papers searched when the government has no reason to believe you’re doing anything wrong qualifies as “unreasonable”), but also the rights protected by the First Amendment.

The government isn’t just searching people for objects such as guns and drugs and other contraband, it’s searching through things that people have written and read.  It’s looking at reading materials as a way to gain insight into people’s views and beliefs.

This used to be a country in which we found this sort of government nosiness offensive. The Department of Homeland Security is apparently counting on this no longer being the case. Hopefully they are wrong.

It’s also interesting, if alarming, to think about the extent to which the government is just plugging a gap.  If the government feels it has the right to read everything that crosses an international border, there is no indication that their searches of our written materials only take place at border crossings. Taken to its logical extreme, the same rationale, that the border is special and constitutional rights don’t apply, would apply with equal force to international mail and vast quantities of email, even much email that is sent by one person in the United States to another person in the United States. This is because of the way the Internet works.  Some email may travel through foreign computers before reaching its U.S. destination.  Is all of this correspondence being searched, too?

Hackers accessed Sarah Pailin’s email account and posted some of her messages and contacts online.  One issue is whether there is anything Governor Palin can do to have this information removed from the Internet.  EFF’s Kurt Opsahl wrote an interesting post explaining why “it is unlikely that a court would require anyone in possession of these email messages to destroy them.”  In short, in Bartnicki v. Vopper,  the Court held it violated the First Amendment for the government to punish media outlets who rebroadcast unlawfully intercepted messages, provided that the media outlets themselves did not engage in the unlawful interception and that the topic at issue was of public concern.  Analogously, argues Kurt, the First Amendment protects Web sites such as Gawker who republished Governor Palin’s emails but did not themselves intercept the email.

Orin Kerr agrees with EFF.

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