DHS Announces Laptop Search Policy

The Department of Homeland Security today released three new directives aimed at clarifying the agency's policies on Customs searches of laptop computers at the U.S. border:

"Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States," said Secretary Napolitano. "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."

The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media--consistent with the Department's Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.

The directives, available at DHS.gov, will enhance transparency, accountability and oversight of electronic media searches at U.S. ports of entry and includes new administrative procedures designed to reflect broad considerations of civil liberties and privacy protections--measures designed to ensure that officers and agents understand their responsibilities to protect individual private information and that individuals understand their rights.

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity--such as possession of child pornography and trademark or copyright infringement.

However, according to the ACLU, the new directives don't go far enough:

"DHS's latest policy announcement on border searches is a disappointment, and should not be mistaken for one that restores the constitutional rights of travelers at the border," said Catherine Crump, staff attorney with the ACLU First Amendment Working Group. "Members of the public deserve fundamental privacy rights when traveling and the safety of knowing that federal agents cannot rifle through their laptops without some reasonable suspicion of wrongdoing. The ACLU does not oppose border searches, but it does oppose a policy that leaves government officials free to exercise their power arbitrarily. Such a policy not only invades our privacy but can lead to racial and religious profiling."