New DHS Standards For Electronic Border Searches Not Adequate

August 27, 2009 12:00 am

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Good First Step But Not Enough To Protect Privacy Or Curtail Profiling, Says ACLU

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WASHINGTON – The Department of Homeland Security (DHS) released new privacy standards for border searches of electronic devices today which, while a welcome first step, do not go far enough. The new standards fail to address the fundamental constitutional problems of suspicionless searches that have been occurring at the border.

The American Civil Liberties Union filed a lawsuit yesterday on suspicionless searches at the border, demanding records about the U.S. Customs and Border Protection’s (CBP) policy of searching travelers’ laptops without suspicion of wrongdoing. CBP is a component of DHS. The lawsuit was filed under the Freedom of Information Act (FOIA) to learn how CBP’s policy, issued last year, has impacted the civil liberties of travelers during the first year of its implementation.

The following can be attributed to Catherine Crump, staff attorney with the ACLU First Amendment Working Group:

“DHS’s latest policy announcement on border searches is a disappointment, and should not be mistaken for one that restores the constitutional rights of travelers at the border. Members of the public deserve fundamental privacy rights when traveling and the safety of knowing that federal agents cannot rifle through their laptops without some reasonable suspicion of wrongdoing. The ACLU does not oppose border searches, but it does oppose a policy that leaves government officials free to exercise their power arbitrarily. Such a policy not only invades our privacy but can lead to racial and religious profiling.”

The following can be attributed to Christopher Calabrese, counsel for the ACLU Technology & Liberty Program:

“There are two key aspects of this new policy worth applauding – the limitations on the time that electronic devices can be held by Customs officers and requirements that information from electronic devices only be retained if there is probable cause that a crime has been committed. These procedural safeguards recognize that the old system was invasive and harmed many innocent travelers.

“But unless and until the government requires agents to have individualized suspicion before reviewing such sensitive information as medical records, legal papers and financial information, even the most elaborate procedural safeguards will be insufficient for the government to live up to its constitutional obligations. It is now time for Congress to act and create concrete standards for searches and directly confront the problem of racial and religious profiling.”

The ACLU’s FOIA request is available online at:

The ACLU statement on legislation improving laptop searches is available online at:

More information on this case is available online at:

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