DHS Watchdog OKs Suspicionless Seizure of Electronic Devices Along the Border.doc

7/29/2019 DHS Watchdog OKs Suspicionless Seizure of Electronic Devices Along the Border.doc

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DHS Watchdog OKs Suspicionless Seizure ofElectronic Devices Along Border

February 10th 2013

The Department of Homeland Securitys civil rights watchdog has concluded that travelersalong the nations borders may have their electronics seized and the contents of thosedevices examined for any reason whatsoever all in the name of national security.

The DHS, which secures the nations border, in 2009 announced that it would conduct a CivilLiberties Impact Assessment of its suspicionless search-and-seizure policy pertaining toelectronic devices within 120 days. More than three years later, the DHS office of CivilRights and Civil Liberties published a two-page executive summary of its findings.

We also conclude that imposing a requirement that officers have reasonable suspicion inorder to conduct a border search of an electronic device would be operationally harmfulwithout concomitant civil rights/civil liberties benefits, the executive summary said.

The memo highlights the friction between todays reality that electronic devices have become

virtual extensions of ourselves housing everything from e-mail to instant-message chats tophotos and our papers and effects juxtaposed against the governments stated quest fornational security.

The President George W. Bush administration first announced the suspicionless, electronicssearch rules in 2008. The President Barack Obama administration followed up with virtuallythe same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devicessearched along the U.S. border, according to DHS data.

According to legal precedent, the Fourth Amendment the right to be free from unreasonablesearches and seizures does not apply along the border. By the way, the government contendsthe Fourth-Amendment-Free Zone stretches 100 miles inland from the nations actual border.

Civil rights groups like the American Civil Liberties Union suggest that reasonablesuspicion should be the rule, at a minimum, despite that being a lower standard thanrequired by the Fourth Amendment.

There should be a reasonable, articulate reason why the search of our electronic devicescould lead to evidence of a crime, Catherine Crump, an ACLU staff attorney, said in atelephone interview. Thats a low threshold.

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http://www.dhs.gov/news/2009/08/27/new-directives-border-searches-electronic-mediahttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.aclu.org/national-security/government-data-about-searches-international-travelers-laptops-and-personal-electrhttp://www.aclu.org/national-security/government-data-about-searches-international-travelers-laptops-and-personal-electrhttp://www.wired.com/threatlevel/2008/10/aclu-assails-10/http://www.dhs.gov/news/2009/08/27/new-directives-border-searches-electronic-mediahttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.aclu.org/national-security/government-data-about-searches-international-travelers-laptops-and-personal-electrhttp://www.aclu.org/national-security/government-data-about-searches-international-travelers-laptops-and-personal-electrhttp://www.wired.com/threatlevel/2008/10/aclu-assails-10/


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The DHS watchdogs conclusion isnt surprising, as the DHS is taking that position inlitigation in which the ACLU is challenging the suspicionless, electronic-device searches andseizures along the nations borders. But that conclusion nevertheless is alarming consideringit came from the DHS civil rights watchdog, which maintains its mission is promoting respectfor civil rights and civil liberties.

This is a civil liberties watchdog office. If it is doing its job property, it is supposed toobjectively evaluate. It has the power to recommend safeguards to safeguard Americansrights, Crump said. The office has not done that and the public has the right to know why.Toward that goal, the ACLU on Friday filed a Freedom of Information Act request demandingto see the full report that the executive summary discusses.

Meantime, a lawsuit the ACLU brought on the issue concerns a New York man whose laptopwas seized along the Canadian border in 2010 and returned 11 days later after his attorneycomplained.

At an Amtrak inspection point, Pascal Abidor showed his U.S. passport to a federal agent. Hewas ordered to move to the cafe car, where they removed his laptop from his luggage andordered Mr. Abidor to enter his password, according to the lawsuit.

Agents asked him about pictures they found on his laptop, which included Hamas andHezbollah rallies. He explained that he was earning a doctoral degree at a Canadian universityon the topic of the modern history of Shiites in Lebanon.

He was handcuffed and then jailed for three hours while the authorities looked through hiscomputer while numerous agents questioned him, according to the suit, which is pending inNew York federal court.

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http://www.aclu.org/blog/technology-and-liberty-immigrants-rights-national-security/aclu-files-foia-request-unreleasedhttp://www.aclu.org/blog/technology-and-liberty-immigrants-rights-national-security/aclu-files-foia-request-unreleasedhttp://www.wired.com/threatlevel/2010/09/laptop-border-searches/http://www.aclu.org/blog/technology-and-liberty-immigrants-rights-national-security/aclu-files-foia-request-unreleasedhttp://www.aclu.org/blog/technology-and-liberty-immigrants-rights-national-security/aclu-files-foia-request-unreleasedhttp://www.wired.com/threatlevel/2010/09/laptop-border-searches/


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Know Your Rights: Constitution Free Zone Map

http://www.aclu.org/know-your-rights-constitution-free-zone-map

Are You Living in a Constitution Free Zone?

The shocking part, besides illegal search and seizure, is the real

estate this assessment includes. 100 miles from the border,

including oceans, affects A LOT of people!

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http://www.aclu.org/know-your-rights-constitution-free-zone-maphttp://www.aclu.org/national-security_technology-and-liberty/are-you-living-constitution-free-zonehttp://www.aclu.org/know-your-rights-constitution-free-zone-maphttp://www.aclu.org/national-security_technology-and-liberty/are-you-living-constitution-free-zone


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ACLU Files FOIA Request for Unreleased DHSPrivacy Report on Laptop Searches at the Border

February 20th 2013By Katie Haas

Aiming to determine the impact of border searches on Americans civil liberties, theDepartment of Homeland Security has produced a report on its policy of combing through and

sometimes confiscating travelers laptops, cell phones, and other electronic devices evenwhen there is no suspicion of wrongdoing. The report was completed sometime betweenOctober 2011 and September 2012, and last week DHS quietly posted only the executivesummary on its website, without many people noticing.

The report draws the highly questionable conclusion that the border search policy does notviolate ourFourth Amendment right to privacy, chill ourFirst Amendment rights to freedom ofspeech and association, or even result in discriminatory search practices.

We know that answer cant be right if we take our Fourth Amendment and First Amendmentrights 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 dont know,because DHS has not made the full report available to the public, and the executive summarydoes not explain any of the evidence or reasoning its conclusions is based on.

Today the ACLU filed a request under the Freedom of Information Act demanding the fullreport, called Civil Rights and Civil Liberties Impact Assessment Border Searches ofElectronic Devices. (You can read our request here).

What we want to discover is what would make the DHS Office of Civil Rights and CivilLiberties, which wrote the report and according to its website is supposed to be promotingrespect for civil rights and civil liberties in DHS policy creation and implementation, reach

such conclusions about these highly invasive practices.If its true that our rights are safe andthat DHS is doing all the things it needs to do to safeguard them, then why wont it show usthe results of its assessment?And why would it be legitimate to keep a report about theimpact of a policy on the publics rights hidden from the very public being affected?

Since at least 2008 it has beenthe policyof DHS that the two agencies that monitor the borderImmigration & Customs Enforcement and Customs & Border Protection can look atinformation on travelers laptops, cell phones, hard drives, and other devices, and sometimeskeep the information or share it with others, even when there is no suspicion that the devicecontains evidence of wrongdoing.

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http://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.aclu.org/free-speech-technology-and-liberty/abidor-v-napolitanohttp://www.aclu.org/free-speech/house-v-napolitanohttps://www.aclu.org/files/assets/dhs_border_search_report_foia.pdfhttps://www.aclu.org/technology-and-liberty/dhs-civil-liberties-impact-report-border-searches-electronics-foia-requesthttp://www.dhs.gov/topic/civil-rights-and-civil-libertieshttp://www.cbp.gov/linkhandler/cgov/travel/admissibility/search_authority.ctt/search_authority.pdfhttp://www.cbp.gov/linkhandler/cgov/travel/admissibility/search_authority.ctt/search_authority.pdfhttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.aclu.org/free-speech-technology-and-liberty/abidor-v-napolitanohttp://www.aclu.org/free-speech/house-v-napolitanohttps://www.aclu.org/files/assets/dhs_border_search_report_foia.pdfhttps://www.aclu.org/technology-and-liberty/dhs-civil-liberties-impact-report-border-searches-electronics-foia-requesthttp://www.dhs.gov/topic/civil-rights-and-civil-libertieshttp://www.cbp.gov/linkhandler/cgov/travel/admissibility/search_authority.ctt/search_authority.pdf


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Essentially DHS has adopted a policy of peering into anyones data, at any time, for anyreason. Through a FOIA request filed three years ago we discovered that more than 6,500travelers had their devices searched under this policy between October 2008 and June 2010.Almost half of those were U.S. citizens.

The executive summary posted online by DHS last week claims that requiring a standard ofreasonable suspicion for these highly intrusive searches (a relatively low standard comparedto the probable cause standard required to get a warrant) would be operationally harmfulwithout concomitant civil rights/civil liberties benefits. But the reality is that allowinggovernment agents to search through all of a travelers data without reasonable suspicion iscompletely incompatible with our fundamental rights: our Fourth Amendment right to privacyand more specifically the right to be free from unreasonable searches is implicated when thegovernment can rummage through our computers and cell phones for no reason other thanthat we happen to have traveled abroad. Suspicionless searches also open the door toprofiling based on perceived or actual race, ethnicity, or religion. And our First Amendmentrights to free speech and free association are inhibited when agents at the border can targetus for searches based on our exercise of those rights.

Take, for example, the case of Pascal Abidor, a dual U.S.-French citizen whose laptop wasseized and searched while he was traveling home to New York from Canada on an Amtraktrain in 2010. Abidor was handcuffed, frisked, and kept in a holding cell for several hours, andhis laptop was taken for 11 days. Government agents searched through highly personalinformation on his laptop, including personal photos, a transcript of a chat with his girlfriend,his tax returns, and his academic research. The only wrongdoing he engaged in wascrossing the border as an Islamic Studies graduate student at a Canadian university who hadrecently traveled to the Middle East. The ACLU represents him in a federal lawsuit seeking toenforce a reasonable suspicion standard for border searches and seizures so that suchviolations of privacy and free expression dont happen again.

My colleague ACLU attorney Catherine Crump says that with the FOIA request we filed today,We hope to establish that the Department of Homeland Security cant simply assert that itspractices are legitimate without showing us the evidence, and to make it clear that thegovernments own analyses of how our fundamental rights apply to new technologies shouldbe openly accessible to the public for review and debate.

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http://www.aclu.org/national-security/government-data-about-searches-international-travelers-laptops-and-personal-electrhttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.aclu.org/free-speech-technology-and-liberty/abidor-v-napolitanohttp://www.aclu.org/national-security/government-data-about-searches-international-travelers-laptops-and-personal-electrhttp://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdfhttp://www.aclu.org/free-speech-technology-and-liberty/abidor-v-napolitano

Documents

DHS Watchdog OKs Suspicionless Seizure of Electronic Devices Along the Border.doc