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    Update on ‘Suspicionless’ Searches of Electronic Devices at the United States Border

    We’ve talked before about the issue of government searches of individuals’ electronic devices at the U.S. border. In 2008, 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.

    In 2009, 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.

    In 2011, the ACLU filed a 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. Note that, according to the 2007 Census, two-thirds of the US population (197.4 million people) live within 100 miles of the country’s borders, where the Border Patrol has been assuming broad powers to interrogate U.S. citizens, creating a “Constitution-Free Zone.”

    Now, Wired reports, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties has issued an executive summary of its assessment (DHS pdf; archive pdf) of the searches — a review that was announced and set for “120 days” in 2009. Wired reports:

    The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security. […]

    “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said.

    The memo highlights the friction between today’s reality that electronic devices have become virtual extensions of ourselves housing everything from e-mail to instant-message chats to photos and our papers and effects — juxtaposed against the government’s stated quest for national security. […]

    According to legal precedent, the Fourth Amendment — the right to be free from unreasonable searches and seizures — does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.

    Civil rights groups like the American Civil Liberties Union suggest that “reasonable suspicion” should be the rule, at a minimum, despite that being a lower standard than required by the Fourth Amendment. […]

    The DHS watchdog’s conclusion isn’t surprising, as the DHS is taking that position in litigation in which the ACLU is challenging the suspicionless, electronic-device searches and seizures along the nation’s borders. But that conclusion nevertheless is alarming considering it came from the DHS civil rights watchdog, which maintains its mission is “promoting respect for civil rights and civil liberties.” […]

    [T]he ACLU on Friday filed a Freedom of Information Act request demanding to see the full report that the executive summary discusses.

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