Via Reuters: U.S. agents can seize travelers’ laptops: report
U.S. federal agents have been given new powers to seize travelers’ laptops and other electronic devices at the border and hold them for unspecified periods the Washington Post reported on Friday.
Under recently disclosed Department of Homeland Security policies, such seizures may be carried out without suspicion of wrongdoing, the newspaper said, quoting policies issued on July 16 by two DHS agencies.
Agents are empowered to share the contents of seized computers with other agencies and private entities for data decryption and other reasons, the newspaper said.
DHS officials said the policies applied to anyone entering the country, including U.S. citizens, and were needed to prevent terrorism.
But, of course, there need be no suspicion of wrong-doing. Lovely.
One gets the impression sometimes that the goal of the US government of late is to make travel as unpleasant as possible in general and to specifically make it less likely that tourists and businesspersons from abroad will want to come to do business in our country.
Of course, it is a all good and justifiable because it is “needed to prevent terrorism” so it must be okay, yes?
So, if i go abroad with my laptop or other electronic device I risk it being seized upon my return for an unspecified amount of time on the whim of a DHS employee?
The WaPo story (Travelers’ Laptops May Be Detained At Border) notes:
The policies state that officers may “detain” laptops “for a reasonable 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 digital 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, pamphlets and “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’ “
This is remarkable and alarming given that amount of private data that one might carry on these devices, let alone things like business and research materials that could be lost because DHS wants to look at your thumb drive.
The story continues:
When a review is completed and no probable cause exists to keep the information, any copies of the data must be destroyed. Copies sent to non-federal 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.
This is unconscionable and unjustifiable–the government is asserting the right to look into private materials to then determine if there is probable cause to keep it? How this can be be in keeping with Fourth Amendment protections is beyond me.
The fact that this policy was a secret until it was forced into the light of day by advocacy groups makes the whole situation even more onerous.
The full policy can be reviewed here [PDF].
UPDATE (James Joyner): I agree this policy is unconscionable. On its surface, however, it’s nothing new. This sort of thing — and worse — has been routine for decades in prosecuting the drug war.
From FindLaw:
”That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.” 87 Authorized by the First Congress, 88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. 89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 90 Terry protections as to the length and intrusiveness of the search do not apply. 91
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[Footnote 87] United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad).[Footnote 88] Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.
[Footnote 89] Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971); Almeida- Sanchez v. United States, 413 U.S. 266, 272 (1973).
[Footnote 90] United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (approving warrantless detention incommunicado for more than 24 hours of traveler suspected of alimentary canal drug smuggling).
[Footnote 91] Id. A traveler suspected of alimentary canal drug smuggling was strip searched, and then given a choice between an abdominal x-ray or monitored bowel movements. Because the suspect chose the latter option, the court disavowed decision as to ”what level of suspicion, if any, is required for . . . strip, body cavity, or involuntary x-ray searches.” Id. at 541 n.4.
It shouldn’t be surprising (even though, somehow, it always is) when a new justification is found.
