Federal agents may take a traveler's laptop computer or other electron=
ic device to an off-site location for an unspecified period of time without=
any suspicion of wrongdoing, as part of border search policies the
recently disclosed.
"The policies . . . are truly alarming," said
Sen. R=
ussell Feingold (D-Wis.), who is probing the government's border=
search practices. He said he intends to introduce legislation soon that wo=
uld require reasonable suspicion for border searches, as well as prohibit p=
rofiling on race, religion or national origin.
DHS officials said the newly disclosed policies -- which apply to anyo=
ne entering the country, including U.S. citizens -- are reasonable and nece=
ssary to prevent terrorism. Officials said such procedures have long been i=
n place but were disclosed last month because of public interest in the mat=
ter.
Civil liberties and business travel groups have pressed the government=
to disclose its procedures as an increasing number of international travel=
ers have reported that their laptops, cellphones and other digital devices =
had been taken -- for months, in at least one case -- and their contents ex=
amined.
The policies state that officers may "detain" laptops "for a reasonabl=
e period of time" to "review and analyze information." This may take place =
"absent individualized suspicion."
The policies cover "any device capable of storing information in digit=
al or analog form," including hard drives, flash drives, cellphones,
iPods, pagers, beepers, and video and audio tapes. They also =
cover "all papers and other written documentation," including books, pamphl=
ets and "written materials commonly referred to as 'pocket trash' or 'pocke=
t litter.' "
Reasonable measures must be taken to protect business information and =
attorney-client privileged material, the policies say, but there is no spec=
ific mention of the handling of personal data such as medical and financial=
records.
When a review is completed and no probable cause exists to keep the in=
formation, any copies of the data must be destroyed. Copies sent to non-fed=
eral entities must be returned to DHS. But the documents specify that there=
is no limitation on authorities keeping written notes or reports about the=
materials.
"They're saying they can rifle through all the information in a travel=
er's laptop without having a smidgen of evidence that the traveler is break=
ing the law," said Greg Nojeim, senior counsel at the
Center for D=
emocracy and Technology. Notably, he said, the policies "don't e=
stablish any criteria for whose computer can be searched."
Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not i=
nfringe on Americans' privacy." In a statement submitted to Feingold for a =
June hearing on the issue, he noted that the executive branch has long had =
"plenary authority to conduct routine searches and seizures at the border w=
ithout probable cause or a warrant" to prevent drugs and other contraband f=
rom entering the country.
Homeland Security Secretary
Michael Chert=
off wrote in an opinion piece published last month in
US=
A Today that "the most dangerous contraband is often contained i=
n laptop computers or other electronic devices." Searches have uncovered "v=
iolent jihadist materials" as well as images of child pornography, he wrote=
.
With about 400 million travelers entering the country each year, "as a=
practical matter, travelers only go to secondary [for a more thorough exam=
ination] when there is some level of suspicion," Chertoff wrote. "Yet legis=
lation locking in a particular standard for searches would have a dangerous=
, chilling effect as officers' often split-second assessments are second-gu=
essed."