The Department of Homeland Security’s civil rights watchdog has concluded that “intuition and hunch” are among the primary reasons why it is “inadvisable” to establish constitutional safeguards protecting travelers’ electronics from being searched for any reason along the U.S. border.
The DHS, which secures the nation’s border, on Wednesday released a redacted report of its “Civil Rights/Civil liberties Impact Assessment” (.pdf) pertaining to border searches of electronic devices, including laptops and mobile phones. In February, the DHS disclosed an executive summary of the 21-page report, concluding then 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.”
The full report sheds more light on the rationale, and comes as electronic devices have become virtual extensions of ourselves, housing everything from e-mail to instant-message chats to photos and our papers and effects:
First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP (Customs and Border Protection) and ICE (Immigration and Customs Enforcement) success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.
That’s the conclusion from the DHS internal civil rights watchdog, which maintains its mission is “promoting respect for civil rights and civil liberties.”
Brian Hauss, an attorney with the American Civil Liberties Union, said the watchdog’s reasoning went too far.
“Although DHS might fear the prospect of being called into open court to explain its actions, executive accountability before the law is the bedrock on which our system of constitutional self-government is built,” Hauss said.
The President George W. Bush administration first announced the suspicion-less, electronics search rules in 2008. The President Barack Obama administration followed up with virtually the same ones a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.
According to legal precedent, the Fourth Amendment — the right to be free from unreasonable search and seizures — does not apply along the border. Alarmingly, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border.
The ACLU contends that “reasonable suspicion” should be the rule, at a minimum, despite that being a lower threshold than required by the Fourth Amendment. That standard would demand a reasonable, articulate reason why the search of electronic devices could lead to evidence of a crime.
Meanwhile, WikiLeaks’ supporter and friend of leaker Bradley Manning who had his laptop seized along the border by the Department of Homeland Security dropped his federal lawsuit challenging the seizure last week.
But the ACLU continues challenging the DHS policy in another case. A litigation concerns a New York man whose laptop was seized along the Canadian border in 2010 and returned 11 days later after his attorney complained.
At an Amtrak inspection point, Pascal Abidor showed his U.S. passport to a federal agent. He was ordered to move to the cafe car, where they removed his laptop from his luggage and “ordered Mr. Abidor to enter his password,” according to the lawsuit.
Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained that he was earning a doctoral degree at a Canadian university on the topic of the modern history of Shiites in Lebanon.
He was handcuffed and then jailed for three hours while the authorities looked through his computer as numerous agents questioned him, according to the suit, which is pending in New York federal court.