DHS announces increased oversight for US border laptop searches

[JURIST] US Department of Homeland Security (DHS) [official website] Secretary Janet Napolitano [official profile] announced [press release] Thursday new restrictions on controversial searches of laptop computers at the US border. DHS issued directives to the Customs and Border Protection (CBP) [official website] and the Immigration and Customs Enforcement (ICE) [directives, PDF] that "enhance and clarify oversight for searches of computers and other electronic media." DHS also released a privacy impact assessment [text, PDF] inform the public about the new directives. Napolitano said:


Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States. The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.

The American Civil Liberties Union (ACLU) [advocacy website] criticized the new directives [press release], calling them a "welcome first step" but saying they "do not go far enough."

The ACLU filed a lawsuit [complaint, PDF; press release] earlier this week demanding access to documents related to the CBP policy of searching travelers' laptop computers. The ACLU alleges that the laptop search policy violates travelers' Fourth Amendment protection against unreasonable searches and seizures because laptops are searched without "individualized suspicion" of wrongdoing. Last year, US Senator Russ Feingold (D-WI) [official website] criticized the CBP's warrantless searches and seizures of travelers' laptops and other digital devices at the US border, calling the searches an unacceptable invasion of privacy [JURIST report]. The US Supreme Court has held that reasonable suspicion is not necessary to conduct routine searches at the border, but Feingold said that searches of laptops and other digital devices are analogous to more invasive practices such as strip searches. In April of last year, the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] that reasonable suspicion is not necessary for a warrantless search of a laptop or other digital device at the border due to inherent national security interests. The court rejected the argument that a laptop is like a human mind because of its ability to record ideas and emails, and held instead that a laptop is the same as closed containers such as purses and wallets.


 

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