August 2009
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DHS Issues New Border Search Rules for Electronic Media

The Fourth Amendment to the U.S. Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . (source)."  Since 9/11, a good number of feathers have been ruffled, debating what constitutes an "unreasonable search."  Pundits a plenty have been ranting about "privacy this" and "warrantless that," but the simple truth is that there are many situations where it is not "unreasonable" for the government to conduct a "search," without first obtaining a warrant.

A classic example is when officials, employed by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Patrol (CBP), search your possessions upon entry into the United States from a foreign country.  Mechanically, the presumption is raised that you consent to the search by entering the United States.  If you don’t want to be searched, don’t come in.  Ostensibly, the goal is to prevent certain items from being smuggled into the country — drugs, explosives, etc. — or, in the words of our Department of Homeland Security (DHS), "to combat transnational crime and terrorism . . .  (source)."  That all seems reasonable, but a hardcore civil libertarian would likely quote Benjamin Franklin in opposition: "Anyone who trades liberty for security deserves neither liberty nor security (source)."

Hang on there, Benji — an act of "terrorism" in your day was dumping some Lipton in the harbor.  It’s pretty hard to uphold the standard of the Founders in the face of more modern concerns (e.g., dirty bombs, heroin, anthrax), but try we must.  Unfortunately, it seems like our government doesn’t try very hard sometimes, as demonstrated recently by DHS, which is responsible for controlling ICE and CBP.

In the face of these more modern threats, coupled with advances in technology that make it possible to transport large amounts of data, ICE and CBP have in recent years begun detaining and searching digital media — e.g., laptops, portable hard drives, thumb drives, CDs, DVDs, iPods, yadda, yadda, yadda.  What are they looking for, you ask?  Answer:

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement. (source)

Terrorist plans — I get it.  IP infringement — I don’t.  Child porn — really?  Gotta throw that one in, so that anyone who makes a stink will look like a pedophile, I guess.

Come on, people.  Get mad.  They’re insulting your intelligence here.  DHS is charged with protecting the security of the homeland, not carrying out the marching orders of the MPAA or RIAA, all without the procedural protections of a warrant.  We’re not just talking about rifling through my dirty underwear anymore, looking for that kilo of cocaine.  You’re potentially reading my emails, skimming my privileged work product, or ogling the naughty pictures I took of my wife while we were having sexy time — all without a lick of probable cause that I’ve done anything illegal.  Not Cool.

So the question remains: How do you authorize customs officials to look for the really bad stuff (e.g., shoe bomb schematics), and, at the same time, protect the stuff that they should need a warrant to view?

To quiet concerns about potential violations of privacy, DHS issued directives this week to ICE and CBP, supposedly ordering those agencies to behave.  The new directives contain a number of "safeguards" that are designed "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 (source)."  They read like a bunch of false measures (to me, anyway).  A few examples:

  • Providing a leaflet to travelers, whose digital media has been detained, explaining any available administrative recourse
  • Hanging signs around borders and ports of entry, informing that digital media is subject to search and potential detention
  • Requiring approval of a supervisor to extend a detention of digital media beyond thirty days
  • Allowing only a supervisor to copy information from detained digital media
  • Directing a customs officer to consult with local counsel or the U.S. Attorney’s Office, if a traveler asserts that the information contained in the digital media is subject to attorney-client privilege

You can read the entire "Privacy Impact Statement" here.

I don’t know what the right answer is to the question posed above, but I do know that I expect my government to respect the notion of freedom that this nation was founded upon.  We left Britain, at least in part, because the police could stop anyone on the street at any time and demand to see their papers.  The Fourth Amendment was carefully crafted to prevent this type of abuse in the United States.  @DHS:  ur doin’ it wrong.

This story was originally published on The Legal Satyricon.

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