Homeland Security’s new policy does not require reasonable suspicion, to the dismay of civil liberties groups.
The Homeland Security Department announced on Thursday that it will continue to allow Customs and Border Protection officials to search travelers' laptop computers and other electronic devices without suspicion of wrongdoing.
The practice of searching travelers' electronic devices without suspicion has been controversial. In April 2008, a 9th Circuit Court of Appeals judge ruled CBP agents do not need reasonable suspicion to search travelers' laptops, smart phones and other electronic devices.
In June 2009, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties held a hearing on the issue, which has been challenged in court 11 times by individuals convicted of having child pornography on their laptops.
Homeland Security released two directives on Thursday, indicating the Obama administration will continue the practice of suspicionless searches, much to the dismay of privacy advocates. Group such as the Electronic Frontier Foundation and the American Civil Liberties Union have opposed the practice, saying it is invasive and likely to lead to racial and religious profiling.
"Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States," said DHS Secretary Janet Napolitano. "The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers, while ensuring DHS can take the lawful actions necessary to secure our borders."
The new directives describe the department's policy on searching travelers' laptops, cell phones and other electronic devices in-depth and set a five-day limit on Customs and Border Protection searches. Immigration and Customs Enforcement special agents are allowed up to 30 days to search an electronic device. The new rules require agents to get a supervisor's approval before confiscating a device and CBP must notify travelers where their device is being kept.
But the changes don't go far enough, according to Christopher Calabrese, counsel for the ACLU's Technology and Liberty program.
"Essentially, they retain the power to look at any laptop at any time," Calabrese said. "Our reaction is that we still haven't reached the core problems of the searches -- the totally suspicionless search of anyone with a laptop and anything on a laptop."
Calabrese said in addition to protecting sensitive information like legal documents or medical records that might be on the devices, his organization is concerned about CBP agents using the policies to profile minorities. The policy is misguided, given that anyone attempting to smuggle data into the United States could easily do so from anywhere in the world via an encrypted e-mail, he added.
"There have been a number of reports from advocacy organizations, Muslim advocates, describing people clearly targeted because of religion and race," Calabrese said. "We take it too much for granted in this country sometimes, that when we're talking about security it's OK to do nudge-and-wink racial profiling. But it's not, and it doesn't have security value."
Customs and Border Protection searched approximately 1,000 laptops between Oct. 1, 2008, and Aug. 11, 2009, 46 of them in-depth.
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