The Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CLCR) has determined that the DHS’s warrantless, and often suspicion-less, search and seizure of electronics devices at U.S. borders does not violate the Fourth Amendment protection against unreasonable search or seizure.
The CLCR argues [pdf] that the Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have, for a long time, possessed the authority to conduct “suspicionless and warrantless searches of merchandise at the border and its functional equivalent.” This authority, they claim, extends to electronics devices as well as other merchandise. In other words, seizing and searching a laptop at an airport customs checkpoint is no different than rifling through someone’s trunk at any land-based port of entry. The courts, the executive summary states, “have not treated [border] searches of electronic devices any differently than searches of other object.”
“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” the summary reads. “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.”
According the ACLU, such has been the DHS policy since as 2008 at least. In the executive summary of their “Border Searches of Electronic Devices” impact assessment, the LCLR explains that two directives issued in 2009, “Border Search of Electronic Devices Containing Information” and “Border Search of Electronic Devices,” limit the ways that government agents use this authority.
The summary goes onto say, without any explanation, that “laptop border searches… do not violate travelers’ First Amendment rights” and that current policies that ensure “reasonable efforts at promptness” make the implementation time limits governing the return of seized good unnecessary.
While the summary seems to indicate no change in the DHS’s attitude toward the constitutionality of border searches, it does recommend “improve[ing] the notice given to travelers subjected to electronic device searches by updating tear sheets to refer travelers to DHS TRIP if they seek redress.”
The DHS commissioned the report to address concerns put forth by groups like the American Civil Liberties Union and the Electronic Frontier Foundation. They reportedly promised that the report would take just 120 days to complete. It took three years, and all the DHS has posted is the report’s executive summary.
The ACLU on Friday filed a Freedom of Information Act request calling on the DHS to release the report in its entirety.
The reality is that American border agents can and do search, seize, and even demand passwords to electronics devices at U.S. border crossings. However, there are methods for avoiding problems with such searches, thanks to some pointers from the EFF.
*Border patrol image via Fifth World Art‘s Flickr photostream, Creative Commons.
