DHS defends suspicionless searches of laptops and cell phones

The United States government doesn’t need a reason to seize and search the cell phones, laptops and other electronic devices of Americans entering the country, according to a Department of Homeland Security document provided to the press this week.

The DHS has long insisted that border agents and immigration  officers are allowed to collect the electronics of US citizens  crossing into the country without reason or cause, but a December  2011 document made public this week once and for all shines a  light on a sparsely discussed security-measure that has attracted  the attention of privacy advocates and others who’ve equated the  practice as a constitutional violation.

The American Civil Liberties Union and the Associated Press  jointly filed a Freedom of Information Act request for the  document earlier this year after the DHS published a two-page   executive summary briefly explaining the  results of an audit conducted by the department’s Office for  Civil Rights and Civil Liberties. In that statement, the DHS  auditor concluded that Customs and Border Protection agents and  officers with Immigration and Customs Enforcement were not  violating either the First or Fourth Amendments to the US  Constitution by seizing the electronics of Americans without  clear suspicion of a crime.

“We conclude that CBP’s and ICE’s current border search  policies comply with the Fourth Amendment,” Tamara Kessler  wrote for the Office for Civil Rights and Civil Liberties in the  summary. “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.”

Now with the full 23-page paper in their possession — albeit a  version that’s seen a fair share of redactions — the AP and ACLU  have published the document in order to expose a post-9/11 policy  that has remained intact under President Barack Obama, but to  little discussion.

“This is striking,” ACLU fellow Brian Hauss wrote  Wednesday, “because it is the first time, as far as we know,  that the government has explained why purely suspicionless  searches supposedly enhance security.”

The government’s reasoning, according to the document, is that  the blanketing ability to collect and assess the devices of  anyone thought to be entering the country is crucial to thwart  high crimes. That being said, the government attests that  requiring actual probable cause before seizing a device would, in  the eyes of the DHS, hinder their ability to counter terrorism.

“[A]dding a heightened [suspicion-based] threshold requirement  could be operationally harmful without concomitant civil  rights/civil liberties benefit,” the document found.   “First, commonplace decisions to search electronic devices  might be opened to litigation challenging the reasons for the  search. In addition to interfering with a carefully constructed  border security system, the litigation could directly undermine  national security by requiring the government to produce  sensitive investigative and national security information to  justify some of the most critical searches.”

“Even a policy change entirely unenforceable by courts might  be problematic,” it continued. “Under a reasonable  suspicion requirement, officers might hesitate to search an  individual’s device without the presence of articulable factors  capable of being formally defended, despite having an intuition  or hunch based on experience that justified a search.”

Speaking to AP, ACLU staff attorney Catherine Crump said the  government’s reasoning is “just not good enough” and  demonstrates purely inadequate reasoning.

“A purely suspicionless search opens the door to ethnic  profiling,” Crump said.

Hauss, the legal fellow for the group’s Speech, Privacy and  Technology Project, said the government’s line of thought in  defending the policy is faulty for a few different reasons.   “DHS claims that giving Americans the opportunity to challenge  laptop searches in court would lead to the divulgence of national  security secrets, but this is obviously wrong,” he wrote.   “The government has numerous resources at its disposal to  prevent the disclosure of sensitive information. The ‘state  secrets privilege,’ to take just one example that is used in  court cases, has been criticized on many grounds, but no one has  ever seriously suggested that its protections are too anemic.  Although DHS might fear the prospect of being called into open  court to explain its actions, executive accountability before the  law is the bedrock on which our system of constitutional  self-government is built.”

Last year, the US Supreme Court upheld an earlier ruling that  legally permitted the use of suspicionless roadblocks anywhere  within 100 miles of an international border, subjecting nearly  200 million Americans around the country to spontaneous and  sporadic inspections of vehicles and their possessions.

On Tuesday, ACLU spokesperson Peter Boogaard told Bloomberg News  that a 2009 policy change restricted how long the DHS can hold on  to seized electronics. Earlier this week, though, it was  suggested that the department did not necessarily see any  problems with duplicating that information to be held on to  indefinitely.

David House, a founding member of the Bradley Manning Support  Network, sued the DHS in 2011 after his computer and cell phone  were seized after an international flight he was on landed at  O’Hare International Airport in Chicago. On behalf of the ACLU,  House sued DHS Secretary Janet Napolitano on the accusation that  his belongings were searched solely on the basis of his  association with the Support Network, an organization that has  paid in full the legal bills for the 25-year-old Army private  accused of committing espionage and aiding terrorists by sharing  sensitive files with the website WikiLeaks. House’s devices were  held for 49 days by ICE — longer than the 30 days allowed legally   — and the contents of those electronics were copied by  investigations. House dropped his lawsuit last after the DHS  agreed to delete its copy of the data.

“They’re giving us exactly what we wanted,” House told  Wired.

original article found here http://rt.com/usa/searches-laptops-phones-cell-336/