The 23-page report, obtained by The Associated Press and the American Civil Liberties Union under the U.S. Freedom of Information Act, provides a rare glimpse of the Obama administration’s thinking on the long-standing but controversial practice of border agents and immigration officers searching and in some cases holding for weeks or months the digital devices of anyone trying to enter the U.S.
Since his election, President Barack Obama has taken an expansive view of legal authorities in the name of national security, asserting that he can order the deaths of U.S. citizens abroad who are suspected of terrorism without involvement by courts, investigate reporters as criminals and — in this case — read and copy the contents of computers carried by U.S. travelers without a good reason to suspect wrongdoing.
The DHS study, dated December 2011, said the border searches do not violate the First or Fourth amendments, which prohibit restrictions on speech and unreasonable searches and seizures.
It specifically objected to a tougher standard in a 1986 government policy that allowed for only cursory review of a traveler’s documents.
“We do not believe that this 1986 approach, or a reasonable suspicion requirement in any other form, would improve current policy,” the report said. “Officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.”
It added: “An on-the-spot perusal of electronic devices following the procedures established in 1986 could well result in a delay of days or weeks.”
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The U.S. government has always maintained that anything a person carries across the border — a backpack, a laptop, or anything hidden in a person’s body — is fair game to be searched as a means of keeping drugs, child pornography and other dangerous goods out of the country, and to enforce import laws. But as more Americans enter the U.S. with sophisticated computers, thumb drives, smartphones, cameras and other electronic devices that hold vast amounts of information about who they are and how they conduct business, privacy rights advocates have pressed for more checks on such authority, particularly if digital files are copied and shared with other federal agencies, such as the FBI.
