DHS Should Halt Suspicionless Searches at Border

Wednesday, June 01, 2011

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A non-partisan constitutional rights advocacy think tank has issued a report that recommends the Department of Homeland Security cease what the committee calls "suspicion less border searches" of electronic devices carried by travelers returning to the United States.

The Constitution Project's Liberty and Security Committee released the report, titled "Suspicionless Border Searches of Electronic Devices: Legal and Privacy Concerns with The Department of Homeland Security’s Policy", in an effort to provide guidance for federal law enforcement policy regarding the current practice of searching electronic devices at the border without obtaining a warrant or demonstrating probable cause.

"Unlike at any time in the past, individuals who travel internationally, by virtue of legitimately choosing to carry electronic devices, are unknowingly subjecting volumes of personal information to involuntary and suspicionless search and review by federal law enforcement authorities. This problem is compounded by the fact that many electronic devices are used to carry both personal and business-related information," the report states.

Currently, electronic devices carried by U.S. citizens attempting to re-enter the country are subject to search and seizure by authorities, and the devices can be transported to an off-site facility for forensic evaluation.

Critics argue that the policy is a violation of Fourth Amendment protections against unreasonable search and seizure, and that the practice does little to improve border security.

"The continual evolution in how people use electronic devices in their everyday lives creates growing tension between the Fourth Amendment guarantees and what historically has been viewed as a narrow exception to the requirements for probable cause and a warrant," the report concludes.

Experts argue that suspension of the "suspicionless border searches" would in no way impede law enforcement's ability to detain travelers and secure a warrant to search devices if there is probable cause.

The committee is made up of a politically diverse group of reputable legal and national security experts, including:

  • David Cole, Professor of Law, Georgetown University Law Center
  • Bob Barr, Former Member of Congress (R-GA)
  • Mickey Edwards, former member of Congress (R-OK)
  • Asa Hutchinson, former Under Secretary for Border and Transportation Security, Department of Homeland Security
  • Mary O. McCarthy, former Associate Deputy Inspector General, Investigations, Central Intelligence Agency
  • James E. McPherson, Rear Admiral, US Navy (Ret.)

The committee recommends that following policy changes at DHS:

1. Amend the CBP and ICE Directives to require that CBP and ICE officials may not search the content or information contained in electronic devices of U.S. persons unless there exists a reasonable suspicion that the electronic device contains illegal material or evidence of illegal conduct.

In the case of non-U.S. persons, officials must have reasonable suspicion that the non-U.S. person is or was engaged in some illegal activity to support such a search. However, officials should still be permitted to conduct limited suspicionless searches aimed at verifying that a device is functioning and is not or does not contain a bomb or weapons.

The definition of “electronic device” should include laptop computers, personal digital assistants, wireless phones, ipads and other tablet devices, ipods and MP3 players, blackberries and other wireless data devices, digital cameras, and any form of electronic, digital or other portable device used to store data.

2. Amend the Directives to clearly prohibit racial or religious profiling. The Directives should require that in determining whether reasonable suspicion exists, officials’ analysis should focus on behaviors and any intelligence information or evidence of wrongdoing. Race, ethnicity, and religious affiliation should not be considered as factors that create suspicion unless these factors are used as part of a specific suspect description.

3. Amend the Directives to require that in the case of U.S. persons, CBP and ICE officials must obtain a warrant based on probable cause to (1) continue the search of an electronic device beyond a time period needed for a reasonable examination of the data, which is presumptively up to 24 hours, but should be based on what is actually reasonable under the circumstances; or (2) retain copies of the information or data contained on an electronic device for longer than 24 hours.

If, however, officials believe the data may have intelligence value related to international terrorism and wish to seek a FISA search warrant, more time may be needed to complete that process. Thus, if officials have begun the process of seeking a FISA warrant during the 24 hour period described above, they should be permitted to retain the device for up to seven days if such additional time is needed to complete the process of seeking a FISA warrant.

4. Revise the ICE and CBP Directives to eliminate any differences between the type, standards for, and extent of searches permitted by the two policies.

5. Create and publish guidelines on handling and review of legally privileged information by CBP and ICE. “Legally privileged information” should include any information protected by the attorney-client privilege, attorney-work product doctrine, medical records or information, journalist’s notes and information, and any other information protected by a recognized legal privilege.

6. Revise the Directives to provide that in the case of U.S. persons, the scope and nature of searches of electronic devices at the border, even when supported by reasonable suspicion, should be reasonably related to the underlying predicate for the search.

7. Conduct regular audits of the operation of these programs and regularly report to Congress on the findings. Such reports should include statistics on the number of people whose devices are searched, the number of devices detained beyond 24 hours, and the number of devices from which data was retained.

The complete report can be found here:  http://www.constitutionproject.org/pdf/Border_Search_of_Electronic_Devices_0518_2011.pdf

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