Civil liberties groups continue to lock horns with the Department of Homeland Security over border searches of electronic equipment, although relatively few people have been affected.
The Department’s statistics show that only 1,000 laptops were searched between October 2008 and August 2009, a time period in which more than 221 million travelers came through U.S. ports of entry.
So why has the American Civil Liberties Union filed suit against the DHS over the issue?
Border Searches and Seizures
Staff members of the U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) agencies have the authority to seize electronic devices at U.S. ports of entry, examine the information they contain, and destroy copies of that information.
That authority comes from a DHS policy publicized July 16 that sparked opposition from several civil liberties organizations last year. It also led to the tabling of Senate Bill S. 3612, also known as the “Travelers’ Privacy Protection Act,” in the U.S. Senate Sept. 26. The act was introduced by Senator Russ Feingold (D-Wis.) and cosponsored by Senators Maria Cantwell (D-Wash.), Daniel Akaka (D-Hi.) and Ron Wyden (D-Ore.). Little progress has been made so far.
CBP issued a new directive on border searches Aug. 20 to clarify matters. This directive states that CBP officers can perform searches whether or not they have cause to suspect the targets of the searches.
Searches of electronic devices will be documented and conducted in the presence of a supervisor if possible, the directive states. Such searches shall be conducted in the presence of the owner of those devices unless national security, law enforcement or other operational considerations make it inappropriate for the owner to be present. However, just because the owner of the information is present does not mean the owner can witness the search, if that will reveal law enforcement techniques or potentially compromise other operational considerations.
Legal materials, medical records, work-related information carried by journalists and business or commercial information will be given special handling.
Devices seized cannot be held for more than five days unless there are extenuating circumstances. If more time is needed, the agents have to seek approval from superior officers and make a record of approvals for extensions and the extensions themselves. Extensions must be made in seven-day increments.
The directive also issues directions for the destruction of copies of seized information; the return of seized devices; and the sharing of seized information with other agencies. And it lays down rules for safeguarding data during storage and transmission.
The directive was made public Aug. 27, with DHS Secretary Janet Napolitano issuing a statement.
Go Tell It to the World
The Aug. 20 directive will enhance transparency, accountability and oversight of electronic media searches and include new administrative procedures to reflect broad considerations of civil liberties and privacy protections, Napolitano said.
The DHS Office for Civil Rights and Civil Liberties (CRCL) would conduct a civil liberties impact assessment within 120 days, Napolitano said. CRCL and the DHS privacy office will ensure training materials and procedures promote fair and consistent enforcement of the law relating to electronic media searches, she added.
Napolitano’s statement was released together with a privacy impact assessment from the DHS Privacy Office. This stated, in essence, that the legal foundation for border searches dates back to statutes passed by the First Congress. It also said examinations and searches may be conducted without a warrant and without suspicion.
“Our authority does go way back, and the DHS policy issued at the end of August clarified a couple of things,” CBP spokesperson Kelly Ivahnenko told TechNewsWorld. “One is the length of time it would take us to do the physical inspection and how long we’d be able to hold the laptop; and the other is the question of accountability. We want to be transparent and make sure everyone’s on the same page.”
Freedom’s Just Another Word
The ACLU contends the Aug. 27 directive doesn’t go far enough. It has filed suit under the Freedom of Information Act about arbitrary searches at the border.
“We have this massive tool for bringing information into the country that doesn’t rely on crossing the border, and it’s called ‘the Internet,'” Christopher Calabrese, legislative counsel for the ACLU, told TechNewsWorld: “The new DHS policy, like the old one, does not give people the confidence that their laptop will not be searched unless there’s reasonable ground for suspicion.”
The Association of Corporate Travel Executives also thinks the new directive leaves room for improvement. “The fact that this document was issued in the first place is a substantial victory for the traveling public,” said Susan Gurley, the association’s global executive director.
However, several points remain to be addressed, according to the association. These include the discretionary authority given to CBP inspectors; “vague” circumstantial interpretations that can “almost indefinitely” extend the amount of time a device is held; and arbitrary searches, Gurley said.
“This issue will certainly be a recurrent one,” Jack Riepe, the ACTE’s communications director, told TechNewsWorld.
Keeping Things in Perspective
DHS figures show that 221 million travelers went through U.S. ports of entry between October 2008 and last August. Only 1,000 laptop searches were conducted during that period, and 46 of these were in-depth searches.
“It’s important to keep that context in mind,” CBP’s Ivahnenko said. “The government has no interest in holding you up unnecessarily if you’re a legitimate traveler, or of searching your documents and laptop if we see there’s no reason for us to do so.”
Those searches have yielded results, she said. However, Ivahnenko could only provide details about five people discovered between 2005 and 2007 to have illicit information on their laptops. She could not provide specific information on any dangerous or illicit materials discovered through CBP searches of laptops this year.
The Elephant in the Room
If CBP felt compelled to search only 1,000 laptops out of the millions of travelers entering the U.S. over the time span of about a year, are the policies it’s operating under too broad? Conversely, is it not conducting enough searches, given the leeway it has to do so?
Here we get into the thorny question of national security versus civil liberties, and both sides have legitimate arguments for their positions.
If only one terrorist or criminal got through, it would be one too many, CBP could argue. With so few searches conducted, it is not taking a ham-fisted approach at all. “We take personal privacy seriously as the government,” Ivahnenko said. “It’s incumbent on us to communicate clearly what our authority is and what our policy is, and that’s important.”
On the other hand, it does seem a violation of travelers’ civil liberties if their electronic devices could be searched just on an official’s say-so without any cause for suspicion. “The amount of private information we carry on our mobile devices today makes it a very scary situation, since we often have business records, medical information and personal correspondence on them,” the ACLU’s Calabrese said. “These would have been thought of by the founders as protected by the Fourth Amendment.”
The real problem — the elephant in the room — is fear that these extensive rights could lead to widespread intrusions of privacy on the whim of a present or future administration. The echoes of warrantless wiretaps and misuse of the Patriot Act reverberate in many Americans’ minds.