DHS Civil Liberties office: Reasonable suspicion not required for search of electronic devices at border

The Office for Civil Rights and Civil Liberties at the Department of Homeland Security (DHS) recently released an assessment concerning border searches of electronic devices which argues that no constitutional rights are violated by such searches with or without reasonable suspicion. When first announced that such an assessment would be made, the report was ordered for completion in late 2009.

The Fourth Amendment, which protects against "unreasonable searches and seizures," has long been interpreted to not carry the same weight at our nation's border. The "border search exception" allows routine searches without suspicion and non-routine searches with some level of suspicion. Still undecided by the Supreme Court, however, is whether electronic devices may be searched at the border without suspicion. The Ninth Circuit is the only circuit to rule on the issue, finding that "reasonable suspicion is not needed ... to search a laptop ... at the international border." A Fourth Circuit court also held that such a search does not violate the First Amendment.

Under the policies adopted by DHS, the department's protector of civil liberties finds that the current search practices which allow electronic searches without the need for reasonable suspicion are constitutional.

We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits....

The report also found that no special considerations are necessary for "setting specific time limits" or taking "special precautions for dealing with sensitive information, such as attorney-client materials, attorney work product, business information, trade secrets, and medical records."

However, it was made clear that searches may not be made in a discriminatory manner "on account of race, religion, or ethnicity."

An improved complaint process was suggested.

The ACLU has filed a Freedom of Information Act request for the entire assessment as DHS only released its two-page executive summary.

From October 2008 to June 2010, more than 6,500 international travelers had their electronic devices searched at the border, half of which were U.S. citizens.