Search and seizureStudy urges DHS to stop seizing laptops at border

A recent report called on DHS to stop its border agents from searching electronic devices like laptops and smartphones of individuals entering the United States without reasonable suspicion of wrong doing.

The study, released last week by the bipartisan legal think tank The Constitution Project, argued that computers and cell phones contain far too much personal information and searching these devices without probable cause violates privacy considerations.

According to the report, from October 2008 to June 2010, more than 6,500 people had their electronic devices searched at the border. Nearly half of those searches occurred with devices owned by U.S. citizens.

Sharon Bradford Franklin, The Constitution Project’s senior policy counsel, said, “Technology is developing so much more quickly and the law needs to catch up.”

Franklin added that administrative procedures could be instituted to protect an individual’s privacy without the need for additional legislation.

“I don’t want anything to diminish security, but some business travelers have had their laptops held for months on end and a reasonable suspicion requirement for U.S. persons is a proper balance,” said Asa Hutchinson, the former head of the Drug Enforcement Administration under President George W. Bush and one of the co-authors of the report.

Hutchinson said that DHS should do all that it can to secure the border, but also strive to do so in a manner that does not negatively affect the flow of commerce.

In response to the report, DHS spokesman Matt Chandler said that the search and seizure of laptops and other electronic devices only occurred on limited occasions “to ensure that dangerous people and unlawful goods do not enter our country.”

Laptops are generally searched to ensure that individuals are not trafficking child pornography, smuggling narcotics, or have ties to terrorism or other criminal gangs.

Chandler added that DHS has been careful to explain the agency’s policy regarding the searches to the public. According to the agency, less than one-tenth of 1 percent of travelers are subject to these electronic searches.

While border patrol agents have routinely conducted searches of individuals and their belongings entering the country, it is only recently become a potential legal issue due to the vast amount of personal data that electronic devices can now hold.

In the past, travellers did not normally carry private documents, letters, and photographs, but new technology has allowed individuals to store and carry information with them wherever they go.

As a result, the report found that travelers carrying electronic devices are “are unknowingly subjecting volumes of personal information to involuntary and suspicionless search and review by federal law enforcement authorities.”

The report went on to say, “This problem is compounded by the fact that many electronic devices are used to carry both personal and business-related information.”

This trend has resulted in growing tension between the Fourth Amendment’s guaranteed protection against unreasonable search and seizure and the border’s historical exemption to these requirements.

Aside from privacy concerns, The Constitution Project warns that these types of searches could lead to racial or religious profiling.

The report cited a 2008 Congressional Research Service study that said, “If a customs official could conduct a search without providing cause, it would be difficult to deter ethnic profiling because the official would not need to explain why he conducted the search.”

Currently U.S. Customs and Border Protection and the Immigration and Customs Enforcement agency have policies that allow agents to conduct searches on electronic devices and can even receive assistance in translating and decrypting data. In addition these searches can occur without the owner of the device present.

To prevent legal problems, The Constitution Project recommends requiring agents to have reasonable suspicion of wrongdoing before they are allowed to search devices as outlined in the Fourth Amendment.

The think tank also recommended that agents be required to obtain a search warrant from the court before holding any data or device for more than twenty-four hours when it involves U.S. citizens or residents.