A group of ex-miltiary personnel, academics, and politicians have asked the Department of Homeland Security to put the kibosh on "suspicionless" or "fishing expedition" searches of laptops and other devices at the nation's borders. This isn't just about a security guard powering up a Netbook to make sure it's not a bomb. The concern is over impromptu police inspections of computer content.
"Individuals who travel internationally, by virtue of legitimately choosing to carry electronic devices, are unknowingly subjecting volumes of personal information to involuntary and suspicionless search and review by federal law enforcement authorities," the Constitution Project group warns.
Full-on seizures
The advocacy group cites figures indicating that from October 1, 2008 through June 2, 2010, more than 6,500 people had their electronic devices searched when crossing the international border. Nearly half were US citizens. And in 2009, Customs and Border Protection ran 2,204 searches of digital media, including laptops. 105 individuals were detained without authorities citing any grounds for reasonable suspicion. 115 devices were seized.
Their statement comes as Bradley Manning defense activist David House is explaining why he is suing the Federal government with the assistance of the ACLU, describing incidents like a "full-on computer seizure at the Chicago O'Hare airport."
"In this situation, the DHS waited until I had cleared customs to approach me and seize my electronics," House says. "The DHS's questions primarily revolved around my political beliefs, my work in Manning Support Network, and my impressions of WikiLeaks."
The Project said that searches "are far more intrusive than the important practice of requiring travelers to open and turn on electronic devices to demonstrate that the devices themselves are not actually bombs or other weapons." Searches could suppress free speech and encourage more racial and religious profiling, the group maintains.
"The continual evolution in how people use electronic devices in their everyday lives creates growing tension between the Fourth Amendment guarantees and what historically has been viewed as a narrow exception to the requirements for probable cause and a warrant."
Individualized suspicion
This plea comes from an interesting mix of civil liberties folk, ex-military people, conservatives, and libertarians. The coalition includes former Congressman and Libertarian presidential candidate Bob Barr, professor and advocate for Muslim women Azizah Y. al-Hibri, and retired Army intelligence officer Stephen E. Abraham.
The request observes that in 2009 Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) issued directives allowing for searches "absent individualized suspicion." If ICE agents confiscate a digital device, they can keep it for 30 days without any supervisory approval. CBP guidelines require approval after five days.
The Project's protest cites Freedom of Information Act filings illustrating the consequences of this policy shift:
In one instance, a traveler had a laptop computer and flash drive confiscated by CBP, and over six months later, he was still trying—with the help of his congressman—to secure the return of his possessions. Another traveler reported the search of a laptop despite putting CBP on notice that the computer contained confidential business information. On another occasion, a traveler had his laptop detained for more than a month, requiring him to buy a replacement for his job. And yet another traveler agreed to a search of several devices in an effort to avoid further delays.
Similarly circumscribed
Bottom line: these petitioners want Customs and Border Protection and Immigration and Customs Enforcement people to behave themselves at border points. That means adding language to their directives requiring agents to demonstrate "reasonable suspicion" before they inspect the content on a laptop or similar device.
"The Fourth Amendment requires that even for search warrants predicated on a showing of probable cause, the warrant must 'particularly' describe the place to be searched and the items to be seized," they write. "Searches of digital devices must similarly be circumscribed and tied to the predicate justifying the search."
In addition, the Project wants a ban on religious and racial profiling added to the directive language: "Race, ethnicity, and religious affiliation should not be considered as factors that create suspicion unless these factors are used as part of a specific suspect description."
The Constitution Project also wants strict limits on how long CBP and ICE can keep a device. In the case of US citizens, agents should be required to ask for a probable cause warrant "beyond a time period needed for a reasonable examination of the data, which is presumptively up to 24 hours, but should be based on what is actually reasonable under the circumstances." The same requirement should apply to any attempt to keep copies of the data for more than 24 hours.
If border agents intend to request a FISA search warrant to keep the files, they should be allowed to hold onto the device for seven days "if such additional time is needed to complete the process."
reader comments
83