A 23-page report obtained by the Associated Press grants U.S. border patrol agents the ability to search travelers’ laptops, cellphones, and other electronic devices storing data based on only a hunch.
The internal Homeland Security Department study contends limiting such searches would prevent U.S. officials from detecting child pornographers or terrorists.
Dated December 2011, the study notes that the border searches do not violate the First or Fourth Amendments, which outlaw restrictions on speech and unreasonable searches and seizures. It also objected to a tougher standard in a 1986 government policy that allowed for only cursory review of a traveler’s documents.
“We do not believe that this 1986 approach, or a reasonable suspicion requirement in any other form, would improve current policy,” the report said. “Officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.” It added: “An on-the-spot perusal of electronic devices following the procedures established in 1986 could well result in a delay of days or weeks.”
The U.S. government has always maintained that anything a person carries across the border — a backpack, a laptop, or anything hidden in a person’s body — is fair game to be searched as a means of keeping drugs, child pornography and other dangerous goods out of the country, and to enforce import laws.
According to a government study, 685 of roughly 50 million travelers entering the U.S. in 2009 and 2010 were subject to electronic device searches. Of those searched, 41 devices were held by the government.
Catherine Crump, an American Civil Liberties Union lawyer who first requested the report, called the report ‘inadequate’ and said such a scenario would lead to numerous lawsuits.
“That’s just not good enough,” Crump said. “A purely suspicionless search opens the door to ethnic profiling.”