WASHINGTON – U.S. border agents should continue to be allowed to search a traveler's laptop, cellphone or other electronic device and keep copies of any data on them based on no more than a hunch, according to an internal Homeland Security Department study. It contends limiting such searches would prevent the U.S. from detecting child pornographers or terrorists and expose the government to lawsuits.
The 23-page report, obtained by The Associated Press and the American Civil Liberties Union under the U.S. Freedom of Information Act, provides a rare glimpse of the Obama administration's thinking on the long-standing but controversial practice of border agents and immigration officers searching and, in some cases holding for weeks or months, the digital devices of anyone trying to enter the U.S.
Since his election, President Barack Obama has taken an expansive view of legal authorities in the name of national security, asserting that he can order the deaths of U.S. citizens abroad who are suspected of terrorism without involvement by courts, investigate reporters as criminals and – in this case – read and copy the contents of computers carried by U.S. travelers without a good reason to suspect wrongdoing.
The DHS study, dated December 2011, said the border searches do not violate the First or Fourth amendments, which prohibit restrictions on speech and unreasonable searches and seizures. It specifically objected to a tougher standard in a 1986 government policy that allowed for only cursory review of a traveler's documents.
"We do not believe that this 1986 approach, or a reasonable suspicion requirement in any other form, would improve current policy," the report said. "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." It added: "An on-the-spot perusal of electronic devices following the procedures established in 1986 could well result in a delay of days or weeks."
The Homeland Security report was prepared by its Office for Civil Rights and Civil Liberties. Several portions of the report were censored, including three pages blacked out entirely. DHS said much of the redacted portions would disclose preliminary deliberations on the issue, which are exempt from the Freedom of Information Act.
The U.S. government has always maintained that anything a person carries across the border – a backpack, a laptop, or anything hidden in a person's body – is fair game to be searched as a means of keeping drugs, child pornography and other dangerous goods out of the country, and to enforce import laws. And until this year's ruling by the 9th Circuit Court of Appeals that objected to the detention of a laptop at the border, federal courts have upheld the government's authority to conduct random, intrusive searches at the border.
But as more Americans enter the U.S. with sophisticated computers, thumb drives, smartphones, cameras and other electronic devices that hold vast amounts of information about who they are and how they conduct business, privacy rights advocates have pressed for more checks on such authority, particularly if digital files are copied and shared with other federal agencies, such as the FBI.
According to the government study, 685 of roughly 50 million travelers entering the U.S. in 2009 and 2010 were subject to electronic device searches. Of those searched, 41 devices were held by the government.
The ACLU, National Association of Criminal Defense Lawyers and other groups have sued to stop the practice, saying that it violates First and Fourth amendment rights and that allowing agents to act on a hunch encourages racial profiling. Activists also worry that the FBI and other federal investigators are using laptop searches at the border to collect intelligence on terror and criminal suspects without judicial checks.
Catherine Crump, the ACLU lawyer who first requested the report, said the study was the first detailed explanation she had seen of why the government believes it doesn't need a reason to open a laptop or storage device and download files for further review. She described as inadequate the government's argument that imposing a legal threshold to perform such searches would lead to lawsuits that could expose sensitive information.
"That's just not good enough," Crump said. "A purely suspicionless search opens the door to ethnic profiling."
In an emailed statement Tuesday, DHS spokesman Peter Boogaard noted its 2009 policy on electronic searches that restricted how long a device could be held without a supervisor's approval and alerting travelers to their right to appeal. DHS also said that it has implemented the recommendations in the report, which includes a suggestion that electronic searches be monitored more closely to prevent potential ethnic profiling.
Since the 2011 report, the 9th Circuit Court of Appeals has objected to searching electronic devices without reasonable suspicion.
"A person's digital life ought not be hijacked simply by crossing a border," Judge M. Margaret McKeown wrote for the appeals court majority in March.
But the ruling involving Howard Cotterman, whose laptop contained hundreds of hidden child pornography files when he crossed the Arizona-Mexico border in 2007, only applies to the states within the appeals court's jurisdiction, including Arizona, California and Alaska. The ruling also left some confusion as to what constitutes a comprehensive search.
Another case, involving Islamic studies student Pascal Abidor, whose laptop was detained for 11 days along the Canadian border, is still pending in a federal district court in New York.
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