September 30, 2008
Bill would require ‘reasonable suspicion’ before DHS electronics search
Any customs agent who wants to go poking around your laptop’s hard drive is going to need a legitimate reason to do so, if legislation proposed Monday is adopted.
As it stands, the Department of Homeland Security has virtually unfettered authority to search, copy and archive the contents of laptops, cell phones and digital cameras travelers carry into the US. Sen. Russ Feingold wants to change that.
Feingold (D-WI), who has criticized DHS’s policy, introduced the Travelers Privacy Protection Act along with Sen. Maria Cantwell (D-WA) and Rep. Adam Smith (D-WA).
“Most Americans would be shocked to learn that upon their return to the U.S. from traveling abroad, the government could demand the password to their laptop, hold it for as long as it wants, pore over their documents, emails, and photographs, and examine which websites they visited – all without any suggestion of wrong-doing,” Feingold said. “Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy. This bill will bring the government’s practices at the border back in line with the reasonable expectations of law-abiding Americans.”
Last year, DHS reversed a two-decade old policy that required reasonable suspicion before Customs and Border Patrol agents could search a travelers’ documents, including the contents of laptops, cell phones, digital cameras and other devices. The new policy also made it easier for DHS to share information it collected with other law enforcement agencies, a provision civil liberties advocates could let those agencies use DHS to conduct warrantless searches on their behalf and subvert the Fourth Amendment.
Feingold’s legislation would require “reasonable suspicion of illegal activity” before DHS agents could search travelers’ electronics, and it would prohibit the agency from holding onto the electronics or copies of files for more than 24 hours without a warrant. It also limits what DHS could share with other agencies.
Civil liberties advocates hailed the legislation’s introduction.
“Congress cannot allow DHS and CBP to turn our borders into Constitution-free zones,” added Timothy Sparapani, ACLU Senior Legislative Counsel. “Americans have the constitutional right to privacy, and that includes the sensitive and personal information we keep on electronic devices. DHS has been rolling back these privacy safeguards, and doing so without proper oversight and public review. Senator Feingold’s much-needed bill seeks to restore our fundamental protections. Furthermore, it allows for overdue congressional oversight and a public discussion concerning our border security.”
The bill also would prohibit profiling visitors based on their race, ethnicity, religion or country of origin.
Amir Khan, an American citizen of Pakistani descent, previously told Raw Story that he has been singled out for additional screening every single time he has returned to the US from trips to Europe or Pakistan. The California resident estimates he has been detained for at least 20 hours, during which his laptop and books were examined by border agents.
“I asked many times, ‘What can I do to resolve this?’” he said. “They told me there’s nothing I can do.”
DHS revealed the expanded authority granted to Customs and Border Patrol Agents earlier this summer in documents released in response to a Freedom of Information Act lawsuit brought by two civil liberties groups.
The agency also previously released its border search policy following to a subcommittee hearing on the laptop searches this summer. No one from the agency would show up to explain the policy during the hearing before the Judiciary Subcommittee on the Constitution, which Feingold chairs.