RE: Vote NO on H.R. 3129, "The Customs Border Security Act of 2001" 

Dear Representative: 

The ACLU urges Members to vote NO on H.R. 3129, "The Customs Border Security Act of 2001" and YES on an expected motion to recommit the bill. The legislation is likely to come to the floor on Thursday, December 6, 2001. The bill would weaken protections against racial profiling and other illegal searches and undermine the right to privacy in personal correspondence. 

Unwarranted Immunity for Customs Officials

Section 141 of the bill provides immunity to a Customs officer conducting a search of a person or property provided he or she was acting in "good faith." The term "good faith" is not defined in the bill. An officer could engage in blatantly discriminatory conduct, but if he in "good faith" believes that he was justified in doing so he could not be held liable. Customs officers are already entitled to qualified immunity that protects them from unwarranted claims related to illegal and unconstitutional searches. This bill would expand immunity so as to make it nearly impossible for a person seeking redress for an unconstitutional search. No law enforcement official is entitled to this broad grant of immunity and the Customs Office, which has a documented history of racial profiling, should not be an exception to the qualified immunity standard. Given that Congress has recently expanded the police powers of government officials, it should not at the same time cut back on the mechanisms in existing law that are designed to ensure police powers are not abused. 

Customs Service agents should not be provided with additional immunity because the Customs Service has a poor record on racial profiling, it routinely conducts particularly intrusive searches, and has broad authority to seize property. A March 2000 General Accounting Office report found that while African American men and women were nearly 9 times more likely to be searched as white American men and women, they were no more likely to be found carrying contraband. 

Privacy of Outgoing International Mail 

Section 144, "Border search authority for certain contraband in outgoing mail," would allow the U.S. Customs Service to open outbound international mail without a warrant if they have reasonable cause to suspect the mail contains certain contraband. Under current law, the Customs Service is empowered to search, without a warrant, inbound mail handled by the United States Postal Service and packages and letters handled by private carriers such as Federal Express and the United Parcel Service. 

Section 144 would allow Customs officials to open sealed, outbound international mail without a warrant, without probable cause, and without any judicial review at all. People in the United States have an expectation of privacy in the mail they send to friends, family, or business associates abroad. The Customs Service's interest in confiscating illegal weapons' shipments, drugs or other contraband is adequately protected by its ability to secure a search warrant when it has probable cause. Short of an emergency, postal officials can always hold a package while they wait for a court to issue a warrant. 

Recently, the U.S. Postal Service wrote a letter to the Chairman of the Financial Services Committee on the issue of searching outbound mail without a warrant: "There is no evidence that eroding these long established privacy protections will bring any significant law enforcement improvements over what is achieved using existing, statutorily approved law enforcement techniques." (Letter to Chairman Oxley from the USPS, dated October 10, 2001.) 

We urge you to vote NO on H.R. 3129 because the bill would weaken protections against racial profiling and other illegal searches and undermines the right to privacy in personal correspondence. We also urge you to vote YES on the expected motion to recommit the bill because the motion would remedy these defects.

Sincerely, 

Laura Murphy
Director, Washington National Office 

Rachel King
Legislative Counsel 

Katie Corrigan
Legislative Counsel