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NEW YORK – Documents obtained by the American Civil Liberties Union as part of a Freedom of Information Act (FOIA) lawsuit show that Customs and Border Protection (CBP) agents searched over 1,500 electronic devices belonging to international travelers in airports and at the U.S. border over a period of nine months. Under the current policy, agents were not required to justify these searches. The documents include complaints by travelers that CBP agents embarrassed and inconvenienced them by baselessly accusing them of wrongdoing and intrusively reviewing their personal files.
"These documents show that the constitutional rights of thousands of travelers were put at risk and violated by the CBP's policy," said Catherine Crump, staff attorney with the ACLU First Amendment Working Group. "The CBP's ability to take and view the personal files of anyone passing through U.S. borders without any suspicion not only presents an inconvenience to travelers, but also fails to protect sensitive personal information that is commonly stored in laptops and cell phones. Fundamental constitutional problems with this policy exist, and must be addressed."
In July 2008, the CBP published a policy that allows agents to subject travelers to suspicionless searches of information contained in documents and electronic devices – including laptops and cell phones. The policy applies to all travelers, including U.S. citizens as well as travelers from other countries, who pass through U.S. borders or who go through international customs at airports. Last June, the ACLU filed a FOIA request for records showing how the policy has impacted travelers. In August, after not receiving the requested information, the ACLU filed a lawsuit to enforce the request. The documents include CBP records of devices searched between October 2008 and June 2009, letters written by travelers to the CBP complaining of mistreatment by border agents and letters from members of Congress to the CBP expressing the concerns of their constituents.
Some of the letters from individuals describe instances in which travelers were humiliated by agents who searched through their personal computer files and digital photos before letting them go. The documents also show that CBP agents transferred electronic files found on travelers' devices to third-party agencies almost 300 times.
"The government has a legitimate interest in searching electronic devices where there is individualized suspicion of wrongdoing, but CBP's policy allows officials to exercise their power arbitrarily," said Crump. "People should be able to travel without having to choose between the inconvenience of leaving their cell phones and laptops at home and having to open up their medical records, financial information and photographs for government inspection."
Last August, the Obama administration announced it would continue the Bush administration's policy of allowing agents to search devices absent individualized suspicion. CBP promised to issue a civil liberties assessment of the policy within 120 days, but it missed that deadline and has yet to issue a report.
"Because the CBP's policy increases the possibility of individuals being selected for scrutiny on the basis of their race or ethnicity rather than any legitimate criteria, it is important that the government provide a civil liberties assessment including data on the racial and ethnic breakdown of those subjected to suspicionless searches, as well as data on the results of these searches," said Crump. "To date, none of the documents we've received address the effectiveness of these intrusive searches or the potential for racial profiling."
The documents obtained from the FOIA can be found here: www.aclu.org/national-security/customs-and-border-protection-cbp-first-production-documents