Border searchesDHS: electronic devices of border crossers can be searched without reasonable suspicion

Border patrol agents have the right to check you package // Source: commons.wikimedia.org

An internal DHS study says there was no legal problem with U.S. border agents searching a traveler’s laptop, cellphone, or other electronic devices based solely on a hunch.

The December 2011 study says that limiting such searches will hamper border agents’ efforts to detect terrorists, child pornographers, and other criminals.

CBS reports that the study was prepared by DHS’s Office for Civil Rights and Civil Liberties.  It was obtained by the American Civil Liberties Union (ACLU) and the Associated Press under the Freedom of Information Act.

The study says that the searches do not violate the First and Fourth amendments, and that a 1986 government policy allowing only a cursory review of a traveler’s documents was insufficient.

“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 ACLU and other groups have sued to stop the practice, arguing such searches violate constitutional rights and would likely lead to racial profiling.

Catherine Crump of the ACLU toldCBS that the study offers the first detailed explanation of why the government believes it can open a laptop or storage device without real cause, but she said the government’s case is a weak one.

“That’s just not good enough,” she said. “A purely suspicionless search opens the door to ethnic profiling.”

The study notes that685 of the 50 million travelers who entered the United States between 2009 and 2010 were subjected to a search of their electronic devices, and that forty-one devices were held by the government.

The U.S. government’s position has always been that that anything a person carries while entering the country can be searched in order to keep drugs, weapons, child pornography, and other illegal items out of the county.

Privacy advocates argue, however, that technology has advanced, and people now carry with them laptops, thumb drives, smartphones, cameras, and other electronic devices which store vast amounts of personal information. A search for contraband or child pornography can thus allow a border agent an unlimited access to the private personal and business life of an individual being searched – access which goes far beyond what is required in connection with searching for smuggled items.

Judge Margaret McKeown of the the 9^th Circuit Court of Appeals agreed that searching an individual’s electronic devices without reasonable suspicion is dangerous..

“A person’s digital life ought not be hijacked simply by crossing a border,” she wrote in March.