DHS defends suspicionless searches of laptops and cell phones

The United States government doesn’t need a reason to seize and search the cell phones, laptops and other electronic devices of Americans entering the country, according to a Department of Homeland Security document provided to the press this week.

The DHS has long insisted that border agents and immigration
officers are allowed to collect the electronics of US citizens
crossing into the country without reason or cause, but a December
2011 document made public this week once and for all shines a
light on a sparsely discussed security-measure that has attracted
the attention of privacy advocates and others who’ve equated the
practice as a constitutional violation.

The American Civil Liberties Union and the Associated Press
jointly filed a Freedom of Information Act request for the
document earlier this year after the DHS published a two-page
executive summary briefly explaining the
results of an audit conducted by the department’s Office for
Civil Rights and Civil Liberties. In that statement, the DHS
auditor concluded that Customs and Border Protection agents and
officers with Immigration and Customs Enforcement were not
violating either the First or Fourth Amendments to the US
Constitution by seizing the electronics of Americans without
clear suspicion of a crime.

We conclude that CBP’s and ICE’s current border search
policies comply with the Fourth Amendment
,” Tamara Kessler
wrote for the Office for Civil Rights and Civil Liberties in the
summary. “We also conclude 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
.”

Now with the full 23-page paper in their possession – albeit a
version that’s seen a fair share of redactions – the AP and ACLU
have published the document in order to expose a post-9/11 policy
that has remained intact under President Barack Obama, but to
little discussion.

This is striking,” ACLU fellow Brian Hauss wrote
Wednesday, “because it is the first time, as far as we know,
that the government has explained why purely suspicionless
searches supposedly enhance security
.”

The government’s reasoning, according to the document, is that
the blanketing ability to collect and assess the devices of
anyone thought to be entering the country is crucial to thwart
high crimes. That being said, the government attests that
requiring actual probable cause before seizing a device would, in
the eyes of the DHS, hinder their ability to counter terrorism.

“[A]dding a heightened [suspicion-based] threshold requirement
could be operationally harmful without concomitant civil
rights/civil liberties benefit
,” the document found.
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
,” it continued. “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
.”

Speaking to AP, ACLU staff attorney Catherine Crump said the
government’s reasoning is “just not good enough” and
demonstrates purely inadequate reasoning.

A purely suspicionless search opens the door to ethnic
profiling,” Crump said.

Hauss, the legal fellow for the group’s Speech, Privacy and
Technology Project, said the government’s line of thought in
defending the policy is faulty for a few different reasons.
DHS claims that giving Americans the opportunity to challenge
laptop searches in court would lead to the divulgence of national
security secrets, but this is obviously wrong
,” he wrote.
The government has numerous resources at its disposal to
prevent the disclosure of sensitive information. The ‘state
secrets privilege,’ to take just one example that is used in
court cases, has been criticized on many grounds, but no one has
ever seriously suggested that its protections are too anemic.
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
.”

Last year, the US Supreme Court upheld an earlier ruling that
legally permitted the use of suspicionless roadblocks anywhere
within 100 miles of an international border, subjecting nearly
200 million Americans around the country to spontaneous and
sporadic inspections of vehicles and their possessions.

On Tuesday, ACLU spokesperson Peter Boogaard told Bloomberg News
that a 2009 policy change restricted how long the DHS can hold on
to seized electronics. Earlier this week, though, it was
suggested that the department did not necessarily see any
problems with duplicating that information to be held on to
indefinitely.

David House, a founding member of the Bradley Manning Support
Network, sued the DHS in 2011 after his computer and cell phone
were seized after an international flight he was on landed at
O’Hare International Airport in Chicago. On behalf of the ACLU,
House sued DHS Secretary Janet Napolitano on the accusation that
his belongings were searched solely on the basis of his
association with the Support Network, an organization that has
paid in full the legal bills for the 25-year-old Army private
accused of committing espionage and aiding terrorists by sharing
sensitive files with the website WikiLeaks. House’s devices were
held for 49 days by ICE – longer than the 30 days allowed legally
– and the contents of those electronics were copied by
investigations. House dropped his lawsuit last after the DHS
agreed to delete its copy of the data.

They’re giving us exactly what we wanted,” House told
Wired.

This article originally appeared on: RT