Laptops at border crossings may be searched without probable cause

DHS yesterday released directives regarding searches of electronic devices and media at border crossings, formalizing existing policy under which such searches may be conducted without suspicion or probable cause. The release comes one day after the American Civil Liberties Union (ACLU) sued for disclosure of the new policies under federal sunshine law.

Grant Gross of IDG News Service writes for PC World that the brouhaha follows complaints that laptop computers carried by Muslim, Arab, and South Asians were disproportionately subject to search during entry into or out of the country.

The Electronic Frontier Foundation, a technology-oriented civil liberties group, had urged that border protection personnel establish probable cause before conducting searches.

The two new directives cover DHS units Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The ICE directive, dated 18 August, states that searches should be conducted in the presence of the carrier “[t]o the extent practicable,” while noting that the carrier may be in the room without being permitted “to witness the search itself.”  The CBP directive, dated two days later, states that searches “should” be conducted in the presence of both a supervisor and the device’s carrier.

Both directives require probable cause for seizure of devices or retention of data.

DHS Secretary Janet Napolitano said Thursday that the new directives “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.”

DHS says that between 1 October 2008 and 11 August, CBP conducted approximately 1,000 laptop searches, of which only 46 were “in-depth.”

Along with the directives, DHS issued an internal privacy assessment validating the policies.