Suspicion not required for border laptop seizures

[David Farber <dave () farber net>]

________________________________________
From: Richard Forno [rforno () infowarrior org]
Sent: Friday, August 01, 2008 10:43 AM
Cc: David Farber
Subject: DHS: Suspicion not required for border laptop seizures

(The New Normal in America post-9/11:  We're all considered guilty
until proven guiltier.  I called this back in 2003........rf)

Travelers' Laptops May Be Detained At Border
No Suspicion Required Under DHS Policies

By Ellen Nakashima
Washington Post Staff Writer
Friday, August 1, 2008; A01

http://www.washingtonpost.com/wp-dyn/content/article/2008/08/01/AR2008080103030_pf.html

Federal agents may take a traveler's laptop computer or other
electronic device to an off-site location for an unspecified period of
time without any suspicion of wrongdoing, as part of border search
policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other
agencies and private entities for language translation, data
decryption or other reasons, according to the policies, dated July 16
and issued by two DHS agencies, U.S. Customs and Border Protection and
U.S. Immigration and Customs Enforcement.

"The policies . . . are truly alarming," said Sen. Russell Feingold (D-
Wis.), who is probing the government's border search practices. He
said he intends to introduce legislation soon that would require
reasonable suspicion for border searches, as well as prohibit
profiling on race, religion or national origin.

DHS officials said the newly disclosed policies -- which apply to
anyone entering the country, including U.S. citizens -- are reasonable
and necessary to prevent terrorism. Officials said such procedures
have long been in place but were disclosed last month because of
public interest in the matter.

Civil liberties and business travel groups have pressed the government
to disclose its procedures as an increasing number of international
travelers have reported that their laptops, cellphones and other
digital devices had been taken -- for months, in at least one case --
and their contents examined.

The policies state that officers may "detain" laptops "for a
reasonable period of time" to "review and analyze information." This
may take place "absent individualized suspicion."

The policies cover "any device capable of storing information in
digital or analog form," including hard drives, flash drives,
cellphones, iPods, pagers, beepers, and video and audio tapes. They
also cover "all papers and other written documentation," including
books, pamphlets and "written materials commonly referred to as
'pocket trash' or 'pocket litter.' "

Reasonable measures must be taken to protect business information and
attorney-client privileged material, the policies say, but there is no
specific mention of the handling of personal data such as medical and
financial records.

When a review is completed and no probable cause exists to keep the
information, any copies of the data must be destroyed. Copies sent to
non-federal entities must be returned to DHS. But the documents
specify that there is no limitation on authorities keeping written
notes or reports about the materials.

"They're saying they can rifle through all the information in a
traveler's laptop without having a smidgen of evidence that the
traveler is breaking the law," said Greg Nojeim, senior counsel at the
Center for Democracy and Technology. Notably, he said, the policies
"don't establish any criteria for whose computer can be searched."

Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not
infringe on Americans' privacy." In a statement submitted to Feingold
for a June hearing on the issue, he noted that the executive branch
has long had "plenary authority to conduct routine searches and
seizures at the border without probable cause or a warrant" to prevent
drugs and other contraband from entering the country.

Homeland Security Secretary Michael Chertoff wrote in an opinion piece
published last month in USA Today that "the most dangerous contraband
is often contained in laptop computers or other electronic devices."
Searches have uncovered "violent jihadist materials" as well as images
of child pornography, he wrote.

With about 400 million travelers entering the country each year, "as a
practical matter, travelers only go to secondary [for a more thorough
examination] when there is some level of suspicion," Chertoff wrote.
"Yet legislation locking in a particular standard for searches would
have a dangerous, chilling effect as officers' often split-second
assessments are second-guessed."

In April, the U.S. Court of Appeals for the 9th Circuit in San
Francisco upheld the government's power to conduct searches of an
international traveler's laptop without suspicion of wrongdoing. The
Customs policy can be viewed at: 
http://www.cbp.gov/linkhandler/cgov/travel/admissability/search_authority.ctt/search_authority.pdf
.



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