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    Homeland Security Secretary Chertoff: Examining electronic devices helps us catch terrorists, pornographers

    USA Today published an editorial on searches and seizures of electronic devices at the US border urging Customs and Border Protection to detail standards and safeguards for these searches and seizures.

    Many travelers don’t know it, but Customs officials can search these or any other electronic devices, confiscate them, copy their contents and keep the device and the data as long as they like.

    The practice is intrusive, and it is disruptive. Travelers have complained of having their laptops seized and held for hours or months with little or no explanation.

    Homeland Security Michael Chertoff (his department oversees Customs and Border Protection) wrote an opposing view response: “Searches are legal, essential: Examining electronic devices helps us catch terrorists, pornographers.”

    We are, of course, mindful of travelers’ privacy. No devices are kept permanently unless there is probable cause. Likewise, any U.S. citizen’s information that is copied to facilitate a search is retained only if relevant to a lawful purpose such as a criminal or national security investigation, and otherwise is erased. Special privacy procedures govern the handling of commercial and attorney-client information.

    We must take Chertoff’s statements at face value because little is known about these searches and seizures. How many individuals’ devices are searched and seized each week, month or year? (Chertoff states that only a “fraction” of individuals who are sent to secondary screening — that group itself he says is a “tiny percentage” of all travelers. Yet he offers no official numbers.) What legal standard is used to search and seize electronic devices such as laptops and digital cameras? How long is this data kept and with whom is it shared? What protections are there against unscrupulous officials using this as an end-run around the warrant requirement, using Customs officers for non-border security purposes, diverting border patrol employees resources from their official duties?

    At a Senate hearing last month, there were witnesses and Senators on both sides of this issue. Yet even those who supported these broad, intrusive searches and seizures agreed that too little is known.

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