By: Michal Flombaum
In 2009, the Department of Homeland Security announced that it would assess the Civil Liberties Impact of suspicionless searches of computers and other electronic devices at the border. Initially, DHS said it would release its findings within 120 days of that announcement, but only in February of this year did DHS release any findings. Releasing only the two page executive summary dealing mostly with the possibility of ethnic or racial profiling, DHS writes that applying a reasonable suspicion requirement to searching electronic devices would be “operationally harmful” without any civil rights and civil liberties benefits.
I find it interesting that DHS relies on the notion that “courts have not treated searches of electronic devices any differently than searches,” given the cases we discussed in class on Monday. Just as we concluded in class, Wired’s coverage of the release takes care to note that, “electronic devices have become virtual extensions of ourselves housing everything from e-mail to instant-message chats to photos and our personal effects,” emphasizing the extremely invasive nature of these searches.
Note that Cotterman was decided just weeks after DHS released the executive summary earlier this year. It will be interesting to follow DHS’s response to Cotterman, and whether DHS will apply the reasonable suspicion standard to all borders or just to those under the jurisdiction of the Ninth Circuit that includes the controversial Arizona and California borders with Mexico
The ACLU filed a FOIA request to discover how DHS reached their conclusions because, as they write, “the reality is that allowing government agents to search through all of a traveler’s data without reasonable suspicion is completely incompatible with our fundamental rights: our Fourth Amendment right to privacy—and more specifically the right to be free from unreasonable searches—is implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad.” Though the ACLU seems to find the reasonable suspicion standard protective enough, the Electronic Frontier Foundation has advocated for a probable cause standard in its Amicus brief.
The full text of the executive summary is available here: http://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdf
For the ACLU’s explanation of their FOIA request, please see: http://www.aclu.org/blog/technology-and-liberty-immigrants-rights-national-security/aclu-files-foia-request-unreleased
For a more complete discussion on the matter, please see The Electronic Frontier Foundation: https://www.eff.org/deeplinks/2013/03/finally-some-limit-electronic-searches-border