Overreach"Absent individualized suspicion": DHS "search at will" policy violates the Fourth Amendment

Published 10 October 2009

Customs agents can now instruct you to log on to your laptop so they can read your e-mails and personal files and examine which Web sites you have visited; they can make a copy of your hard drive, and of any other storage device, so the government can comb through the contents more leisurely; this contents, without your knowledge, may be shared with any other government agency; it can be kept in perpetuity; the same applies to your BlackBerry, iPhone, and other digital devices; customs agents can do all that, according to DHS policy, “absent individualized suspicion”; a law professor says the government’s substitution of “search at will” for “reasonable suspicion” is a flagrant violation of the Fourth Amendment

When you enter the United States at a border crossing, or at a sea- or air-port, a U.S. customs agent can instruct you to log on to your laptop so he can read your e-mails and personal files and examine which Web sites you have visited. He can make a copy of your hard drive, and of any other storage device, so the government can comb through the contents more leisurely. The contents, without your knowledge, may be shared with any other government agency. It can be kept in perpetuity. The same applies to your BlackBerry, iPhone, and other digital devices.

Elizabeth Goitein, director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law, writes in the San Francisco Chronicle that until recently, this would not have been allowed. “Long-standing customs directives prohibited agents from reading travelers’ personal documents unless they reasonably suspected them to be merchandise or evidence of illegal activity, she writes.

The Bush administration, in the wake of 9/11, changed the rules, allowing agents to “review and analyze” the contents of electronic devices, including laptops, cell phones, and BlackBerrys “absent individualized suspicion.” Agents also could make copies of the devices’ contents and share them with other government agencies. Legislators have already introduced bills in Congress to restore the “reasonable suspicion” requirement.

Back in May, in a Senate Judiciary Committee hearing in May, Secretary of Homeland Security Janet Napolitano promised to review the policy. DHS has now released a new policy — and it is the same as the Bush policy in almost every relevant respect. “The government may still search electronic devices without reasonable suspicion, retain copies indefinitely to complete its search and share information with other agencies,” Goitein writes. Yes, the new policy includes more “procedural safeguards,” such as supervisory approval, to ensure adherence to the rules. “But when the operative rule is ‘search at will,’ how useful is a procedural safeguard?” Goitein asks.

Both the Bush and the Obama administrations have cited national security to justify suspicionless searches. There is no evidence, however, that a suspicionless search has ever turned up a security threat. Goitein says that in every success story cited by the government thus far, there was ample reason for suspicion. “Indeed, suspicionless searches are likely to be counterproductive, as they waste limited resources that would be better spent on real threats,” she adds.

Suspicionless searches also hurt American businesses. She notes that many companies are now taking expensive measures, such as purchasing separate travel laptops, to prevent the disclosure of proprietary information at the border. And suspicionless searches can lead to ethnic and religious profiling.

Goitein, a law professor, points out that there is the question of legality. The Fourth Amendment prohibits unreasonable searches and seizures. Suspicionless searches of suitcases and other “closed containers” at the border are considered reasonable, while searches of the person require grounds for suspicion because of the greater dignity and privacy interests involved. The government argues that searching a laptop is legally identical to searching a suitcase, and so far, several courts have agreed. “But it’s time for the law to catch up with technology,” Goitein insists. “A laptop is not just a ‘closed container’; the privacy interests at stake are of a much higher order.”

She concludes:

Ultimately, though, this issue goes beyond the law. President Obama promised to keep the country safe without sacrificing our values. Freedom from unwarranted government intrusion into our private lives is one of the values Americans cherish most. The president should honor his promise and restore the reasonable suspicion requirement.