WASHINGTON, DC — Elected officials are calling “alarming” Department of Homeland Security policies that allow border-crossing officers to seize travelers’ laptop computers without suspicion and retain them indefinitely.DHS disclosed its policies about electronic devices in late July after outcry from civil liberties groups arose in the face of mounting traveler concerns surrounding warrantless and allegedly baseless seizures by U.S. Customs and Border Inspection and U.S. Immigration and Customs Enforcement agents.
According to documents provided by both agencies, federal officers may confiscate any electronic devices belonging to anyone attempting to enter the U.S., including American citizens. The devices may be taken off-site without a schedule for their return. Agents do not need to have a reason for confiscating the devices, and the contents of the equipment may be shared with other agencies and private entities for the purposes of language translation, decryption or any other reason, according to the policies, dated July 16th.
“The policies… are truly alarming,” Sen. Russell Feingold [D-Wis.], told The Washington Post.
Feingold is investigating DHS border-search practices and said he plans to propose legislation requiring reasonable suspicion before electronic devices may be searched. In addition, Feingold’s legislation will prohibit profiling based on race, religion or national origin.
DHS defended its policies — all of which it said were longstanding — as necessary to prevent terrorism. Customs Deputy Commissioner Jayson P. Ahern said the terms “do not infringe on Americans’ privacy” despite permitting seizures of “any device capable of storing information in digital or analog form”: hard drives, flash drives, cellphones, iPods, pagers, beepers, video and audio tapes and recorders, cameras, laptops, PDAs, etc. Similar policies cover “all papers and other written documentation,” including books and “pocket trash.”
“[T]he most dangerous contraband is often contained in laptop computers or other electronic devices,” Homeland Security Secretary Michael Chertoff wrote in an editorial published in July by USA Today. “Violent jihadist materials” and child pornography are among the prohibited materials border officials have discovered during laptop searches, he noted. “As a practical matter, travelers [some 400 million of which enter the U.S. annually] only go to secondary [screenings] when there is some level of suspicion. Yet legislation locking in a particular standard for searches would have a dangerous, chilling effect as officers’ often split-second assessments are second-guessed.”
Although the policies note “reasonable measures” must be taken to protect business data and communications on seized electronic devices, nothing is said about personal information like medical records and financial data.
Another area for concern, according to people who have reviewed the policies, is that although they specify copies of the data obtained from electronic devices must be destroyed in cases where an investigation turns up nothing suspicious, the policies do not require the destruction of any notes or reports about the data.
“They’re saying they can rifle through all the information in a traveler’s laptop without having a smidgen of evidence that the traveler is breaking the law,” Greg Nojeim, senior counsel at the Center for Democracy and Technology, told The Washington Post. “[The policies] don’t establish any criteria for whose computer can be searched.”
So far the courts have weighed in on the side of the government. In April, the 9th Circuit Court of Appeals in San Francisco — known as one of the more liberal of the circuit courts — affirmed federal authorities’ right to search international travelers without suspicion.
