Vol. 72/No. 38      September 29, 2008

The CBP, a Department of Homeland Security (DHS) agency, has conducted “border searches” and seizures for years at U.S. borders and airports. The U.S. Supreme Court has decided that border cops aren’t affected by rules that restrict other cops because border areas are not regulated by normal laws.

DHS secretary Michael Chertoff defends the new policy in a July 16 USA Today opinion piece. “In the 21st century, the most dangerous contraband is often contained in laptop computers or other electronic devices,” Chertoff writes. “Officers have discovered video clips of improvised explosive devices being detonated, a martyrdom video, and other violent jihadist materials.”

Chertoff claims that the DHS is “mindful of travelers’ privacy,” citing that no devices would be kept permanently without cause. Copied information of U.S. citizens would be retained only if relevant to an investigation. He says that only a “tiny percentage” of those entering the United States are referred to individual baggage inspection and “only a fraction” of them had electronic devices that may have been checked.

Jayson Ahern, CBP deputy commissioner, estimates that “tiny fraction” is less than 1 percent out of 400 million travelers per year to the United States—as many as 4 million people.

In April the Ninth Circuit Court of Appeals ruled in favor of border police who in 2005 scrutinized a returning traveler’s laptop without “reasonable suspicion” for several hours until finding child pornography photos.

Despite the fact that courts haven’t yet given agents a legal basis to permanently seize personal effects without suspicion during border searches, the CBP policy states that “officers may detain documents and electronic devices, or copies … for a reasonable period of time to perform a thorough border search. The search may take place on-site or at an off-site location.”

CBP may request the assistance of any federal agency or entity to conduct a further examination. Unlimited copies of information can be made and distributed. Any agency assisting the CBP may keep such copies if the matter also falls under that agencies jurisdiction. Otherwise, they say, copies should be destroyed. CBP may “retain documents relating to immigration matters” indefinitely.

The DHS promises to pay special attention to keeping “personal and trade information” relating to business confidential.
 
 
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