DHS Watchdog OKs Suspicionless Seizure of Electronic Devices Along Border

February 10th 2013

The Department of Homeland Securitys civil rights watchdog has concluded that travelers along the nations borders may have their electronics seized and the contents of those devices 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 Civil Liberties Impact Assessment of its suspicionless search-and-seizure policy pertaining to electronic devices within 120 days. More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings. 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, 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 to photos and our papers and effects juxtaposed against the governments stated quest for national security. The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The President Barack Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data. According to legal precedent, the Fourth Amendment the right to be free from unreasonable searches and seizures does not apply along the border. By the way, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nations actual border. Civil rights groups like the American Civil Liberties Union suggest that reasonable suspicion should be the rule, at a minimum, despite that being a lower standard than required by the Fourth Amendment. There should be a reasonable, articulate reason why the search of our electronic devices could lead to evidence of a crime, Catherine Crump, an ACLU staff attorney, said in a telephone interview. Thats a low threshold. 1

The DHS watchdogs conclusion isnt surprising, as the DHS is taking that position in litigation in which the ACLU is challenging the suspicionless, electronic-device searches and seizures along the nations borders. But that conclusion nevertheless is alarming considering it came from the DHS civil rights watchdog, which maintains its mission is promoting respect for civil rights and civil liberties. This is a civil liberties watchdog office. If it is doing its job property, it is supposed to objectively evaluate. It has the power to recommend safeguards to safeguard Americans rights, 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 demanding to see the full report that the executive summary discusses. Meantime, a lawsuit the ACLU brought on the issue concerns a New York man whose laptop was seized along the Canadian border in 2010 and returned 11 days later after his attorney complained. At an Amtrak inspection point, Pascal Abidor showed his U.S. passport to a federal agent. He was ordered to move to the cafe car, where they removed his laptop from his luggage and ordered Mr. Abidor to enter his password, according to the lawsuit. Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained that he was earning a doctoral degree at a Canadian university on the topic of the modern history of Shiites in Lebanon. He was handcuffed and then jailed for three hours while the authorities looked through his computer while numerous agents questioned him, according to the suit, which is pending in New York federal court.

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!

ACLU Files FOIA Request for Unreleased DHS Privacy Report on Laptop Searches at the Border
February 20th 2013 By Katie Haas

Aiming to determine the impact of border searches on Americans civil liberties, the Department of Homeland Security has produced a report on its policy of combing through and sometimes confiscating travelers laptops, cell phones, and other electronic devices even when there is no suspicion of wrongdoing. The report was completed sometime between October 2011 and September 2012, and last week DHS quietly posted only the executive summary on its website, without many people noticing. The report draws the highly questionable conclusion that the border search policy does not violate our Fourth Amendment right to privacy, chill our First Amendment rights to freedom of speech and association, or even result in discriminatory search practices. We know that answer cant be right if we take our Fourth Amendment and First Amendment rights 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 summary does 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 full report, called Civil Rights and Civil Liberties Impact Assessment Border Searches of Electronic Devices. (You can read our request here). What we want to discover is what would make the DHS Office of Civil Rights and Civil Liberties, which wrote the report and according to its website is supposed to be promoting respect 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 and that DHS is doing all the things it needs to do to safeguard them, then why wont it show us the results of its assessment? And why would it be legitimate to keep a report about the impact of a policy on the publics rights hidden from the very public being affected? Since at least 2008 it has been the policy of DHS that the two agencies that monitor the border Immigration & Customs Enforcement and Customs & Border Protection can look at information on travelers laptops, cell phones, hard drives, and other devices, and sometimes keep the information or share it with others, even when there is no suspicion that the device contains evidence of wrongdoing. 4

Essentially DHS has adopted a policy of peering into anyones data, at any time, for any reason. Through a FOIA request filed three years ago we discovered that more than 6,500 travelers 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 of reasonable suspicion for these highly intrusive searches (a relatively low standard compared to the probable cause standard required to get a warrant) would be operationally harmful without concomitant civil rights/civil liberties benefits. But the reality is that allowing government agents to search through all of a travelers data without reasonable suspicion is completely incompatible with our fundamental rights: our Fourth Amendment right to privacy and more specifically the right to be free from unreasonable searches is implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad. Suspicionless searches also open the door to profiling based on perceived or actual race, ethnicity, or religion. And our First Amendment rights to free speech and free association are inhibited when agents at the border can target us 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 was seized and searched while he was traveling home to New York from Canada on an Amtrak train in 2010. Abidor was handcuffed, frisked, and kept in a holding cell for several hours, and his laptop was taken for 11 days. Government agents searched through highly personal information 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 was crossing the border as an Islamic Studies graduate student at a Canadian university who had recently traveled to the Middle East. The ACLU represents him in a federal lawsuit seeking to enforce a reasonable suspicion standard for border searches and seizures so that such violations 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 its practices are legitimate without showing us the evidence, and to make it clear that the governments own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.