Critics: Revised rules for laptop searches at border still cross the line

Last summer, under the Bush administration, the Department of Homeland Security instituted a policy saying it could seize and search laptops, phones and other devices carried by travelers entering the country, U.S. citizens included, even absent any specific suspicions. Under the policy, the equipment could be held indefinitely and the contents could be examined and shared with other agencies. As you would expect, this quickly raised the hackles of civil liberties and privacy groups, who saw the potential for all kinds of First and Fourth Amendment problems. Just Wednesday, the ACLU filed suit to get the government to respond to its Freedom of Information Act request for details like the criteria for selecting passengers for suspicionless searches, the number of laptops seized, the length of time they were held, and the race and ethnicity of their owners.

On Thursday, DHS Secretary Janet Napolitano announced that after a review, the policy has been revised, but anyone looking for the new administration to make substantial changes was disappointed. While steps will be taken to improve oversight and transparency and to make sure seized equipment is returned expeditiously, the underlying search guidelines were allowed to stand. “Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” Napolitano said. “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.” Civil liberties advocates begged to differ. “Under the policy begun by Bush and now continued by Obama, the government can open your laptop and read your medical records, financial records, e-mails, work product and personal correspondence — all without any suspicion of illegal activity,” said Elizabeth Goitein, head of the liberty and national security project at the nonprofit Brennan Center for Justice. “It’s a disappointing ratification of the suspicionless search policy put in place by the Bush administration,” said Catherine Crump, ACLU staff attorney. “It provides a lot of procedural safeguards, but it doesn’t deal with the fundamental problem, which is that under the policy, government officials are free to search people’s laptops and cellphones for any reason whatsoever.”

The ACLU did get an answer to at least one of its questions, though. The DHS said that between October 2008 and Aug. 11, more than 221 million travelers passed through Customs checkpoints, and about 1,000 laptop searches were performed, only 46 in depth.


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  • greg in nashville

    I would love to understand how this actually works – if my laptop were chosen to be kept/examined, am I forced to give them all IDs for them to have access? What if I have encrypted partitions (like Apple’s Filevault) or even fully encrypted drives?

    This really seems SO “Iron Curtain”!

  • RedRat

    Here I must agree with the ACLU. If a laptop can be seized without warrant, what prevents the DHS from seizing anything on your person outside your home, e.g., your briefcase, suitcase, or any other item. Unless there is a hard reason, this certainly is forbidden by the Constitution under the search and seizure clause. It is a sad day that the Obama Administration, that campaigned on the idea of “change”, has agreed to go along with the previous administration’s policies. So much for “change”.


    The Courts have long held that the 4th amendment does not apply to border / Customs officials due to a “Border Search” exception. That’s what stops DHS from coming into your house.

  • Jim Gibbons

    Why would anyone take their laptop across our borders with sensitive info contained on it, such as medical records, personal e mail, etc. If they do they suffer the consequences of theft, vandalism, drops, forgetfullness, etc. They deserve what they get.

  • Bazza

    Well spoken Comrade Jim

  • RedRat

    First off:
    “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Constitution, Amendment IV)

    That is what the Constitution says. I don’t see anywhere in here that airports are off limits to our rights. Once I land in the U.S. and am on U.S. soil, I am protected by that 4th Amendment. That the courts usually and historically have applied seizure to non-citizens might have some grounds, but where in that 4th Amendment does it say that you can seize at airports on American soil??? And even here, there is the term “unreasonable” vested in the power of seizure, just because someone is carrying a laptop does not make the seizure “reasonable”. I am afraid that this is indeed another erosion of our rights, little by little, like grains of sand, and before long you have no rights but one heck of mountain.

  • Chris Taylor

    Sounds like the George W. Bush “Fascist Machine” is still alive and operating inside the Barack Obama Administration. I am not giving up my laptop to anyone and that includes some G-man (or woman).

    I voted for President Obama to clean up and undo the mistakes and crimes committed by Bush/Cheney, Inc. If they don’t plan to do that, then they will not get my vote in 2012.

    Someone told me Obama (recently) continued Bush’s policy to give Halliburton more no-bid contracts. I hope that isn’t true. It’s time for Attorney General Holder to investigate these criminals and put them on trial (and in prison) where they belong!

  • sd

    Meet the new boss, same as the old boss. 🙁

    Barry & Co. have quite a way to go to achieve the depths of corruption and incompetence that visited us for the past 8 years. But if they keep this up, somewhere in a cave in Afghanistan ObL is going to start planning his victory party. Amazing. And sad.