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    Update on Searches of Electronic Devices at the United States border

    A couple of years ago, we learned that the Bush administration (via the Department of Homeland Security) had steadily broadened its search and seizure powers at the United States border. Basically, the federal government said that border officials can take whatever they desire from U.S. citizens and others (laptops, cellphones, cameras), for as long as the officials want, and share it with whomever they please, without any hint of wrongdoing. Here are August 2008 search policies: the Customs and Border Protection policy (pdf) and Immigration and Customs Enforcement policy (pdf) (both agencies are within the Department of Homeland Security).

    This data could be your personal or business address book, personal photos, personal or business e-mail, personal or business taxes or other financial data, and myriad other information. There was a public outcry at the civil liberties violations that could occur through abuse of these search powers. Then-DHS Secretary Michael Chertoff wrote a column stating: “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.”

    At the time, I noted that we must take Chertoff’s statements at face value because little was known about these searches and seizures, such as: 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? The powers are wrapped up in the usual reasons — national security, child pornography, drug trafficking. However, individuals should remember that the broad authority can be used for any or no reason upon any or all persons at the border.

    Last year, the Obama administration unveiled new rules on searches of electronic devices at the U.S. border, yet the broad search and seizure powers remained. And the DHS Privacy Office approved these broad powers in a Privacy Impact Assessment (pdf). The Privacy Office said that travelers are subject to suspicionless searches and their electronic devices may be viewed, copied or seized by border agents without a specific cause. And it is possible that travelers would have no idea that their devices had been viewed or copied. “In some situations it is not practicable for law enforcement reasons to inform the traveler that his electronic device has been searched,” said the Privacy Office.

    Now, the Washington Post reports that there is a new lawsuit challenging the federal government’s policy allowing border agents’ searches and seizures of travelers’ electronic devices — even if the travelers are not suspected of wrongdoing. (The ACLU’s page on its lawsuit is here.)

    In a federal lawsuit to be filed Tuesday in the Eastern District of New York, the plaintiffs allege that the Department of Homeland Security policy violates constitutional rights to privacy and free speech.

    At issue is the government’s contention – upheld by two federal appeals courts – that its broad authority to protect the border extends to reviewing information stored in a traveler’s laptop, cellphone or other electronic device, even if the traveler is not suspected of involvement in criminal activity. In the government’s view, a laptop is no different than a suitcase. […]

    But the American Civil Liberties Union, which is filing the case on behalf of the plaintiffs, argues that laptops and smartphones, unlike a suitcase of clothes and toiletries, contain highly personal information, from financial records to family photos. The government should have a “reasonable suspicion” that a crime has been or is about to be committed before reviewing such information, the plaintiffs contend. […]

    ACLU attorney Catherine Crump said this case may be more likely to succeed than previous challenges, which involved criminal defendants whose laptops contained child pornography. […]

    The plaintiffs are the National Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association and Pascal Abidor. Abidor, a 26-year-old doctoral student and dual U.S.-French citizen, was on an Amtrak train from Montreal to New York to visit family last spring when his laptop was searched and confiscated by CBP officers. […]

    Abidor is among 6,671 travelers whose laptops or other devices were searched between October 2008 and June 2010, according to the ACLU. Slightly less than half – 45 percent – were U.S. citizens.

    Eighty-three percent were male, 52 percent identified as white, 10 percent as black and 9 percent as Asian. No category was provided for people of Middle Eastern descent.

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