This month, the U.S. Department of Homeland Security published the executive summary for their civil liberties assessment of U.S. Customs searches of traveler's electronic devices. To put it briefly, DHS has concluded that additional civil liberties safeguards to protect traveler's privacy either are not needed or would not be effective. However, they have decided not to publish the reasoning behind these conclusions.
In the absence of an explanation, all we can do is speculate as to what their reasoning might be, but if the kind of safeguards that DHS considered in their assessment would not be effective, perhaps this means that it is time to reconsider the framework of Constitutional safeguards that are available.
U.S. Customs has performed searches of travelers belongings at border crossings since at least the civil war era. In recent times a confluence of factors has introduced some controversy about these searches. On the one hand, the pressures of the war on drugs as well as the terrorist attacks of September 11th have increased the frequency and intrusiveness of the searches that are being performed. On the other hand, the dropping costs of air travel have placed a larger cross section of the public at border crossings with increased frequency, and the advent of the laptop computer has placed massive archives of personal information in those travelers hands as they cross those borders.
DHS has long maintained that U.S. Customs agents can search and seize traveler's electronics at random, without any reason or suspicion. Thousands of travelers electronic devices are searched and/or seized every single year.
Some people mistakenly conclude that this is because the Fourth Amendment doesn't apply at the border. The reasoning is actually more subtle. The Forth Amendment requires that probable cause be established before a search warrant can be issued, but it doesn't state that a search warrant is required for every kind of search - it merely protects the right of the people to be secure against "unreasonable searches and seizures." The Constitution leaves it up to the courts to determine what kind of searches are "reasonable" and what kind of searches are "unreasonable," as well as when a warrant is needed.
In general, the Supreme Court has concluded the U.S. Customs may search the belongings of travelers at border crossings at random, without any reason or suspicion. The court has determined that these searches are "reasonable" because they occur at the border, and therefore probable cause does not need to be established and a warrant does not need to be obtained.
However, there are limits to this power. Extremely intrusive searches, such as body cavity searches or strip searches, require that "reasonable suspicion" be established before they take place at the border. "Reasonable suspicion" is a standard of suspicion like "probable cause," but it is much weaker. It merely requires that there be some articulate reason why a search would lead to evidence of a crime, whereas probable cause requires this reason be sufficiently strong to be persuasive to a prudent or cautious person.
While no type of border search has been found to require "probable cause," one question that has been raised from a number of corners is whether "reasonable suspicion" shouldn't be required for searches of electronic devices. Because of the amount of personal information that can be stored on these devices, a search or seizure of such a device is potentially extremely intrusive from a privacy standpoint. However, DHS concluded differently in their civil liberties impact assessment, writing:
"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."
DHS doesn't explain why they reached this conclusion. Obviously, a requirement that searches be based on some sort of articulate reason why they would lead to the discovery of evidence would have a civil liberties benefit, as it would prohibit searches from being performed at random or on the basis of hunches. What possible reasoning could DHS have for their conclusion that this benefit would not be "concomitant" with the requirement?
While we can only speculate, this may be because the reasonable suspicion standard has been whittled down to be almost meaningless. Consider this assessment of various reasons given for reasonable suspicion from Supreme Court case UNITED STATES v. SOKOLOW:
Compare, e. g., United States v. Moore, 675 F.2d 802, 803 (CA6 1982) (suspect was first to deplane), cert. denied, 460 U.S. 1068 (1983), with United States v. Mendenhall, 446 U.S. 544, 564 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (CA4 1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (CA6 1977) (nonstop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (CA9), vacated, 831 F.2d 1413 [490 U.S. 1, 14] (1987) (case below) (changed planes);Craemer, supra, at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (CA5 1981) (gym bag), cert. denied, 455 U.S. 991 (1982), with Sullivan, supra, at 12 (new suitcases); United States v. Smith, 574 F.2d 882, 883 (CA6 1978) (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (CA5 1980) (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, 444 U.S. 878 (1979), with United States v. Himmelwright, 551 F.2d 991, 992 (CA5) (acted too calmly), cert. denied, 434 U.S. 902 (1977).
The problem, perhaps, is that reasonable suspicion often means whatever the police want it to mean anyway, so requiring it serves no purpose because it doesn't protect innocent people at all.
The ACLU has filed a Freedom of Information Act request, insisting that the government disclose the reasoning behind the conclusions they have reached. The ACLU writes:
“We hope to establish that the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”
I strongly agree. However, I also believe that it is not reasonable for Americans to fear that their personal electronics devices might be seized at random every time they carry them along on an overseas trip. It is not reasonable for Americans to fear that the government might perform an indepth analysis of our email archives and web browsing histories just because we had a business trip or took a short vacation in another country. I believe that this sort of imposition is precisely the kind of unreasonable search that the Forth Amendment was intended to prohibit.
If the reasonable suspicion standard is not strong enough to provide a "concomitant" civil liberties benefit, and the "operational harm" of requiring "probable cause" would be too high, perhaps the correct answer is to develop a new standard that would balance these concerns appropriately. Allowing random searches does not achieve that goal.