WASHINGTON, DC — Newly introduced federal legislation would impose limits upon border agents’ ability to seize and search personal electronic devices. Under current procedural guidelines, customs agents may take anyone’s laptop, cellular phone, external storage devices, digital cameras and other equipment without suspicion, keep the items indefinitely and make copies of the contents.Rep. Loretta Sanchez [D-CA] introduced the Border Search Accountability Act of 2008 after saying she was “deeply concerned to learn about the lack of protections individuals have when their electronic equipment is randomly seized. With the passage of [the bill], Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information.”
The bill would not make searching the items more difficult, but it would make reclaiming the devices easier and would require the government to secure any data they copy. A federal appellate court earlier this year ruled on the constitutionality of data seizure, saying even without probable cause agents could view and copy electronic data at border crossings without running afoul of Fourth Amendment constraints on searches and seizures. The Ninth Circuit Court of Appeals based its decision on existing precedent that briefcases, suitcases, papers in travelers’ pockets and graphic materials are fair game for border agents, but not for authorities within the country’s borders.
If Sanchez’ bill becomes law, the government would be required to allow travelers to watch as their devices are searched. In addition, the government would have to set a number of days electronic devices may be retained, establish data security guidelines, issue receipts for confiscated items and establish channels through which travelers could report abuses. The government also would be required to complete both privacy impact and civil liberties impact studies.
Finally, the Sanchez bill would require the Department of Homeland Security, under which border agents work, to report to Congress once each quarter about how many searches were conducted and where they occurred as well as what ethnic groups and nationalities were involved.
The Border Search Accountability Act of 2008 is unlikely to see action during this congressional term since it was submitted so near the end of the session. Currently it sits in the House Committee on Homeland Security, were it likely will expire at the end of the term.
Congress may take up the matter again next year, though, as more than 40 civil liberties and travel groups in May requested hearings about the subject.
