The Department of Homeland Security (DHS) has determined that border searches of American citizens without probable cause or suspicion, which sometimes result in the seizure of laptops, cell phones or other electronic devices, do not violate civil liberties. How DHS drew these self-serving conclusions is unknown because no evidence to support these conclusions was released by DHS.
The report draws the highly questionable conclusion that the border search policy does not violate our Fourth Amendment right to privacy, chill our First Amendment rights to freedom of speech and association, or even result in discriminatory search practices.
We know that answer can’t be right if we take our Fourth Amendment and First Amendment rights seriously—and the ACLU is working to demonstrate that in two lawsuits currently pending before federal courts. So how did the agency reach this conclusion? We don’t know, because DHS has not made the full report available to the public, and the executive summary does not explain any of the evidence or reasoning its conclusions are based on.
The “impact assessment” of DHS policies that guide searches of electronic devices at the United States’ borders was done by the DHS’ Office for Civil Rights and Civil Liberties (CRCL).
This office—which probably functions more like an entity tasked with creating and promoting the legal justification for programs that violate laws or civil liberties—examined US Customs and Border Protection (CBP) and US Immigrations and Customs Enforcement (ICE) and found, “ICE and CBP exercise longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent.”
The “authority” cited were two directives issued by ICE and CBP, however, no basis in law was referenced. Agencies are not supposed to release directives that carry the force of law. Executive Branch agencies are not to make law (though that does not necessarily mean that this has not occurred).
With regards to the Fourth Amendment, the summary claims, “The overall authority to conduct border searches without suspicion or warrant is clear and longstanding.” The Fourth Amendment clearly states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [emphasis added]
Perhaps, the Ministry of Truth provided DHS with a different version of the Fourth Amendment. It would make sense if that were the case because the summary declares, “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.” In other words, the benefits that naturally come with civil liberties are not significant enough to DHS to instruct officers to conduct border searches under a “reasonable suspicion” standard.
As for the First Amendment, the summary argues, “Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights. However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.” They might as well have written, “It does not violate the First Amendment because it does not violate the First Amendment.”
In response to this ridiculousness, the ACLU has filed a Freedom of Information Act request for the full report so Americans can know the basis for these conclusions.
The ACLU seeks access to the complete Civil Rights/Civil Liberties Impact Assessment on Border Searches of Electronic Devices and associated records so that those whose civil liberties and privacy interests are impacted, including many American citizens who travel across borders each year with common electronic devices like cell phones and laptops, can understand the full bases for DHS’s conclusions in the CRCL Impact Assessment. [emphasis added]
Moreover, this is not some abstract issue. The ACLU has pursued two lawsuits: one on behalf of Bradley Manning Support Network co-founder David House and the other on behalf of dual US-French citizen Pascal Abidor.
Abidor, according to the ACLU, “had his laptop searched and confiscated at the Canadian border while traveling home to New York on an Amtrak train in May 2010. Abidor, an Islamic Studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos, and chats with his girlfriend, had been searched.”
House was targeted for his lawful association with the Support Network. He was reentering the country and had his laptop and other electronic devices seized. And the DHS obtained a copy of the “complete Support Network mailing list, confidential communications between members of the Steering Committee about strategy and fund-raising activities, the identity of donors, lists of potential donors and their ability to contribute, and notes on meetings with donors including personal observations about those donors.”
His property was only returned to him after the ACLU sent a letter on December 21, 2010, to DHS, CBP and ICE urging the agencies to return his electronic devices. In fact, his property was returned the day after.
This reality is perhaps why this conclusion on “time limits” for holding property is so appalling:
Current policies ensure reasonable efforts at promptness and, accordingly, we do not believe that setting specific time limits is necessary. We also find that the 2009 ICE and CBP Directives appropriately address the need to take special precautions when dealing with sensitive information, such as attorney-client materials, attorney work product, business information, trade secrets, and medical records. Additional safeguards are not needed. [emphasis added]
It may not be that surprising, given the state of secrecy, that DHS would post an executive summary to a report and not the full report itself, however, that does not make it acceptable. If this “impact assessment” is really supposed to do more than function as official agency propaganda, the full report should be released to the ACLU and to the public. In fact, the public should not have to submit a FOIA for the report. The DHS should post it on their own volition, but does anyone really expect that to happen?