No suspicion necessary: DHS can still seize belongings without reason
Feb 9, 2013
The Fourth Amendment no longer means what you once thought it did: A new report reveals that the government has shrugged off concerns over the alleged constitutional infringements of its own citizens near international crossings.
An internal review of the US Department of Homeland Security’s procedures regarding the suspicionless search-and-seizure of phones and laptops near the nation’s border has reaffirmed the agency’s ability to bypass Fourth Amendment-protected rights [.pdf].
In a two page executive summary published quietly last month to the official DHS website, the agency explains that a civil rights and civil liberties impact assessment of the office’s little-known power to collect personal electronics near international crossings has passed an auditor’s interpretation of what does and doesn’t violate the US Constitution.
Since 2009, the DHS has been legally permitted to seize and review the contents of personal electronic devices, including mobile phones, portable computers and data discs, even without being able to cite any reasonable suspicion that those articles were involved in a crime.
When the initiative was introduced in August 2009 by DHS Secretary Janet Napolitano, she defended the policy change. “Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” the secretary said, adding, “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.”
In that Aug. 09 announcement, Sec. Napolitano ensured the American public that they had nothing to worry about and that an impact assessment would be conducted within 120 days to eliminate any fears. More than two years later, however, the DHS-led study has only now been released in part, and its findings do little to alleviate the concerns of civil liberty advocates who have held their breath since the early days of the Obama administration, waiting anxiously to hear about the legality of a directive that applies to both Customs and Border Protection agents and officers with theImmigration and Customs Enforcement working under the DHS.
“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” reads the assessment, written by Tamara Kessler of the department’s Office for Civil Rights and Civil Liberties. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” she adds.