New Guidelines on Border Searches of Laptop Computers

Previously, CrimProf noted that the ACLU had filed a lawsuit demanding information on US policy on searches of laptop computers at the border. The Ninth Circuit has ruled that the constitution does not preclude warrantless and suspicionless searches of laptop computers at the border.

Shortly after the ACLU's suit, the Department of Homeland Security "announced new directives to enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry." The press release, which includes links to the policies themselves, is here.

The ACLU has criticized the new policies. The release is here. According 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.”

Christopher Calabrese, counsel for the ACLU Technology & Liberty Program, said:

“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.”-