Probable Cause Not an Issue during Border Searches
At U.S. borders, Department of Homeland Security agents may take a close look at your laptop or BlackBerry, a very close look.
The Washington Post recently reported that federal agents may take a person's laptop or other electronic device away from them, to an off-site location, and keep it for as long as they wish.
The agents do not need to have any suspicion of wrongdoing on the part of the traveler, or any indication that the laptop or electronic device contains anything illegal. It's simply a matter of DHS policy regarding border searches, and apparently probable cause doesn't come into play until after the search is complete.
In addition to randomly seizing laptops and electronic devices and having a look at the information on the hard drive or storage device, DHS officials may also make copies and share the data with other agencies and even private companies. If the data needs to be translated or is encrypted, or if for some other reason officials feel the need to share the data, border search policies allow them to do so.
Senator Russell Feingold says that the border search policies are nothing short of alarming. Feingold is probing the DHS border search practices and plans to introduce legislation to bring back the constitutional concept of probable cause for searches. He also will include provisions in the bill to prohibit racial profiling as well as bias based on religion or national origin.
According to the DHS, the border search policies apply to anyone crossing the border into the United States, including U.S. citizens. The government insists that these policies are necessary for national security. It has also been disclosed that these policies are not new, but were only recently disclosed due to public interest.
The border search policies have actually already been upheld by the U.S. Court of Appeals for the 9th Circuit in San Francisco. In April, the court upheld the government's authority to conduct searches of laptops belonging to international travelers without probable cause.
An increasing number of international travelers have reported that their laptops, cell phones and other electronic devices have been taken at the border. In some cases, these items have been kept by government officials for months while the data on them was examined. Because of these reports, civil liberty and business travel groups pressed DHS to disclose its policy regarding border searches.
The DHS border search policies allow government agents to take not only laptops, cell phones, pdas and other electronic devices but also paperwork and written documentation, including books, brochures and receipts.
Probable cause only comes into play after the data and information has been reviewed. After the search of the data is completed, if there is no probable cause at that point to keep the information, all copies must be destroyed and all copies sent to non-federal agencies or companies must be returned to DHS. Notes and reports regarding the search will not necessarily be destroyed or discarded.
