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DHS report supports suspicionless searches of electronic devices at borders

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A Homeland Security Department report says that border agents should  perform suspicionless searches of electronic devices at borders, because adding a heightened, suspicion-based threshold could be operationally harmful and would not necessarily enhance civil liberties.

The December 2011 DHS civil rights/civil liberties impact assessment, which was released in response to an American Civil Liberties Union Freedom of Information Act request, notes (.pdf) that electronic searches affect "only a very small proportion" of travelers--an average of 383 per month in 2010.

If DHS were to institute constraints for border searches, decisions to search electronic devices may become subject to litigation, says the report.

This litigation would interfere "with a carefully constructed border security system" and "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," says the document.

The ACLU finds fault with several of the department's claims in this assessment. Challenging laptop searches would not necessarily reveal national security information because there are several mechanisms to prevent the disclosure of sensitive information, such as the state secrets privilege, writes Brian Hauss, a legal fellow with ACLU's speech, privacy and technology project, in a June 5 blog post.

Even if the policy change wasn't enforceable in courts, officers may become hesitant to search an individual's device if they can't articulate or formally defend the intuition or hunch driving the reason for the search, says DHS.

The report provides several national security success stories stemming from electronic device searches that were undertaken based on hunches.

"Requiring law enforcement agents to possess objective reasons for a search is a feature of our constitutional framework, not a bug," writes Hauss.

Although the specifics of the department's Constitutional argument are largely redacted, DHS says it does not believe these searches violate First and Fourth Amendment rights as defined by the courts.

"Even at the border, the Fourth Amendment requires more than just hunches. It is disappointing that the DHS watchdog dedicated to protecting our privacy and other civil liberties does not recognize that," writes Hauss.

Not only does the report recommend Customs and Border Protection and Immigration and Customs Enforcement continue searches without a reasonable suspicion requirement, "additional time limits on electronic searching are not necessary" and "additional safeguards are not needed with respect to privileged or sensitive information."

The report does make five recommendations that authors believe will enhance civil liberties. The publication asks DHS to:

  • Ensure CBP officers record their rational for the search;
  • require ICE and CBP to explicitly address antidiscrimination in its search policies;
  • regularly analyze the number of searches by race and ethnicity at each port of entry;
  • develop oversight mechanisms should ports of entry skew toward more searches for a certain ethnicity; and
  • improve notice given to travelers that electronic devices may be subject to search.

For more:
- download the report, "Civil Rights/Civil Liberties Impact Assessment – Border Searches of Electronic Devices" (.pdf)

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