The idea was to provide some clarity on the issue of searches of computers and other digital devices when travelers enter the U.S. However, while Thursday’s announcement of new Department of Homeland Security policies for border inspections was greeted as a good first step by some, they didn’t completely quiet privacy rights groups.
The new rules help government officials walk the fine line between protecting Americans and ensuring their constitutional rights, according to DHS Secretary Janet Napolitano. “Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” she said. “The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”
Searches of laptop computers, portable DVD players, digital media players and the like can begin with a simple request to turn on the devices. The policies announced this week still allow searches without owner permission, but users can remain with the device while the search is conducted. Time limits are now set if the devices have to remain with Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE) officials.
“For CBP, the detention of devices ordinarily should not exceed five days, unless extenuating circumstances exist,” according to the DHS’s Privacy Impact Assessment. “The ICE Directive requires that Special Agents complete the border search of any detained electronic device or information in a reasonable time, but typically no longer than 30 days, depending on the facts and circumstances of the particular search.”
More Questions Remain
Previously, the DHS had said it could hang on to questionable devices for a “reasonable time,” so the clarification on time limits was greeted with some encouragement by the American Civil Liberties Union, which called it a “good first step.” However, in a Thursday statement, the ACLU said it still had an issue with the idea of devices being searched without probable cause.
“Members of the public deserve fundamental privacy rights when traveling and the safety of knowing that federal agents cannot rifle through their laptops without some reasonable suspicion of wrongdoing,” said ACLU staff attorney Catherine Crump. “The ACLU does not oppose border searches, but it does oppose a policy that leaves government officials free to exercise their power arbitrarily. Such a policy not only invades our privacy but can lead to racial and religious profiling.”
That sentiment is echoed by Marcia Hoffman, staff attorney for the Electronic Frontier Foundation (EFF). “My feeling is that it’s not much different from what the policy was before, but it’s more clearly explained and it gives the public more detail about the inspection process, which I think is good,” Hoffman told TechNewsWorld. “But we don’t think they should be conducting searches of digital devices for no reason at all. We think there should be suspicions that there’s some wrongdoing before they go rummaging through all that information.
“The courts have said it’s okay for CBP to do that,” she added. “We think as a practical matter in the age of technology, there need to be some safeguards in place to protect people’s privacy rights. These (devices) contain a tremendous amount of information about a person.”
Technological Advances Won’t Help
“Given the clarifications, it’s still a case where there are some very serious concerns here,” said Ryan Radia, information policy analyst with the Competitive Enterprise Institute. “To take a laptop for days or a month simply because there’s some vague hunch there’s contraband in it is completely unacceptable.”
Secretary Napolitano gave two examples of the kinds of material DHS officials are looking for in these devices: terrorist plans and child pornography. The DHS says out of 221 million travelers at U.S. ports of entry between Oct. 1, 2008, and Aug. 11 of this year, approximately 1,000 notebook computer searches were done, and 46 of those were considered “in-depth” searches.
DHS is looking to develop new tools for collecting data and analyzing what is found in electronic media searches, but Radia said technology may be working against their efforts in this case.
“Encryption is getting better every year, computer processing is getting better, experts in encryption are coming up with new ways of making data secret,” Radia told TechNewsWorld. “No level of technology that we currently know about is going to enable government to crack encryption in a matter of hours.”
US Search Policy vs. Europe
This issue may be a sticking point in U.S. negotiations with European Union officials now working on a new intellectual property enforcement agreement, according to Gwen Hinze, EFF international policy director. “One of its purposes is to increase search powers of customs officials at national borders to search for potentially copyright-infringing or counterfeit trademark goods,” Hinze told TechNewsWorld.
Some of the negotiation details have made their way to the Wikileaks Web site. “One of them shows that European negotiators have requested a de minimis exception in the Border Measures provisions. This would suggest that EU customs officials may not currently be required, or at least have discretion, as to when searches are to be performed on travelers’ laptops and personal media devices,” Hinze said. “The U.S. negotiators appear to be opposing this. This would suggest that the European Community may currently have more stringent standards for when laptop searches are to be performed at national borders.”