Janet Napolitano:

Today [27 August 2009] I announced new directives to enhance and clarify oversight for searches of computers and other electronic media at US ports of entry -- a critical step designed to bolster the Department's efforts to combat transnational crime and terrorism while protecting privacy and civil liberties.

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.

From the 10-page CBP Border Search of Electronic Devices Containing Information:

In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law.

Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect that information from unauthorized disclosure.

If after reviewing the information ... there is not probable cause to seize it, any copies of the information must be destroyed, and any electronic device must be returned.

Without probable cause to seize an electronic device or a copy of information contained therein, CBP may retain only information relating to immigration, customs, and other enforcement matters if such retention is consistent with the privacy and data protection standards of the system of records in which such information is retained.

Thanks to two other MemeStreams users I learned that the new Obama flavor DHS laptop search policies are out and that the ACLU is suing DHS for more specific information.

I read through all of this stuff.

The most important take away is that Obama is continuing the civil liberties excesses of the Bush years. That impression is no longer theoretical. This isn't some lawsuit that they were already up to their ears in when he took office. This is administration policy that was radically expanded during the Bush years which Obama's team took the time to review, reconsider, and rewrite. This is Obama on civil liberties. Its not pretty.

While I'm glad that DHS took the step of publishing this information it will not resolve the substantive policy debate in any way.

Janet Napolitano seems to disagree:

“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.”

In fact, with one minor exception that I'll discuss, there is no "civil liberty" acknowledged here, so this policy cannot be said to strike any sort of balance.

These documents explain that DHS randomly seizes laptops, cellphones, and cameras and "detains" them for indepth forensic analysis in search of evidence of any crime. They will usually keep these items for less than 5 days but they can keep them for extended periods of time. By randomly I mean without any suspicion at all. They literally pick you out of the line at random.

We're told that DHS will store the electronics in a secure location and destroy any copies when they are done with them, but anything else would be totally irresponsible. The mere fact that they aren't leaving your laptop in an insecure location doesn't balance your civil liberties interests!

The privacy impact study does take the time in its introduction to acknowledge that "the... central privacy concern is the sheer volume and range of types of information available on electronic devices as opposed to a more traditional briefcase or backpack." It almost sounds like they are off to a good start, but the document never directly addresses the privacy implications of having Customs officers forensically examine that information, which includes detailed records of personal correspondence, work product, web surfing history, photographs and music collections, etc. That is the central concern here and the document steps around it with a creepy degree of bureaucratic blindness:

CBP and ICE have identified six privacy risks associated with the examination, detention, retention, and/or seizure of a traveler’s electronic device or information during a border search: (1) t... [ Read More (0.5k in body) ]