A new U.S. policy regarding border searches gives U.S. Customs and Border Protection (CBP) officers the authority to seize electronic devices, examine the information they contain and destroy that information.
The policy allows CBP officers to examine documents, books, pamphlets and other printed material, and information stored in digital or analog form, including computers, disks, hard drives, and digital storage devices like iPods and cell phones.
Examination of documents and electronic devices is a "crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws," according to the policy.
"Absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter, re-enter, depart, pass through, or reside in the U.S.," reads the Anti Counterfeiting Trade Agreement, released Friday.
"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," Greg Nojeim, senior counsel at the Center for Democracy and Technology," told The Washington Post, adding the policy doesn't "establish any criteria for whose computer can be searched."
Advocacy groups are contesting the policy and also have at least one lawmaker on its side. "The policies ... are truly alarming," said Sen. Russell Feingold (D-Wis.), according to The Washington Post. Feingold is reportedly considering legislation requiring evidence of reasonable suspicion at borders.
In an editorial in Friday's USA Today, Michael Chertoff, secretary of the Department of Homeland Security, strongly defended the policy.
"Laptop searches have proven essential to detecting people and materials that should be blocked from entering the United States. Officers have discovered video clips of improvised explosive devices being detonated, a martyrdom video and other violent jihadist materials," said Chertoff.
Chertoff also said that of the approximately 400 million travelers who entered the country last year, only a tiny percentage were "referred to secondary baggage inspection for a more thorough examination. Of those, only a fraction had electronic devices that may have been checked."
And despite the new policy granting permission for destroying electronic material even if "there is not probable cause to seize it," Chertoff said that, "we are, of course, mindful of travelers' privacy. No devices are kept permanently unless there is probable cause."
Chertoff also maintains that these types of searches are legal and quotes the U.S. Supreme Court, saying that the "right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." Chertoff also said that every federal appellate court in the country to address the laptop issue, including the 9th Circuit, has concluded that, at the border, "there is no constitutional basis for treating laptops differently than hard copy documents."
"We cannot abandon our responsibility to inspect what enters the U.S. just because the information is on an electronic device," Chertoff concluded. "To do so would open a dangerous window for terrorists and criminals to exploit our borders in new and unacceptable ways."
