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 can’t 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 don’t 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 are 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 it’s true that our rights are safe and that DHS is doing all the things it needs to do to safeguard them, then why won’t 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 public’s 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. Essentially DHS has adopted a policy of peering into anyone’s 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 traveler’s 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 don’t 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 can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”
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