DHS Issues New Directives Regarding Warrantless Border Searches of Electronic Devices

The directives consist of guidelines for the U.S. Immigration and Customs Enforcement (ICE), dated August 18, and for the U.S. Customs and Border Patrol (CBP), dated August 20, and modify policies issued by CBP and ICE in July of 2008 under President Bush.   In addition, DHS released a Privacy Impact Assessment regarding these directives "to enhance public understanding of the authorities, policies, procedures, and privacy controls elated to these searches."

Under the Fourth Amendment, the U.S. government is allowed to conduct warrantless searches of private belongings at international borders without any individualized suspicion of wrongdoing.  The 2008 policies outlined the procedures CBP and ICE would follow in the event of a border seizure, including that electronic devices could be transferred to federal, state, or local law enforcement or other government officials for help in determining whether probable cause of illegal activity existed, and that CBP could retain originals or copies of the material “for a reasonable period of time to perform a thorough border search.”   The policies provided protections for confidential, attorney-client, and trade secret information, and CBP’s policy provided that information would be returned within 15 days unless a longer retention period was deemed necessary.

The new directives generally reaffirm the 2008 policies, most significantly retaining the practice of conducting warrantless border searches of electronic devices, although with more explicit protections intended to respond to concerns expressed by some privacy advocates who claimed that the government was overreaching.  The new provisions provide:

• Individuals should be present when an electronic device is searched, although presence may not be allowed if security dictates otherwise.  In other words, no right to witness the search itself is provided.

• A supervisor must be present or be notified of the results as soon as practicable.

• The agencies must issue a receipt for seized material, and to detain it longer than five days they must have managerial approval; to detain it longer than fifteen days, they must have higher-level approval, which can be renewed in seven-day intervals.

• In addition to attorney-client and trade secret information, the directives require protections for "other possibly sensitive information" such as medical records and work-related information carried by journalists.

The directives allow for the unconditional transfer of information to other federal agencies when technical assistance is needed to continue the border search, such as if the information is password protected, encrypted, or in a foreign language.  If CBP or ICE needs to transmit information to another federal agency for subject matter assistance, such as to determine the meaning, context, or value of information contained in the electronic device, they must have reasonable suspicion that a law has been violated.  If after review of the information the agencies determine there is not probable cause that a law has been violated, they must return the information and destroy any copy of it within seven days.  All of these processes must be documented, and an individual must be notified when his or her information has been transmitted to another agency unless that notification would be contrary to national security, law enforcement, or other operational interests.

While the updated directives placated certain members of Congress, including Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, who co-sponsored a March bill to require DHS to issue regulations mirroring many of the requirements in the directive, some privacy advocates, such as the ACLU, remain unimpressed.   But until the courts change the constitutional standard or Congress acts to limit the scope of border searches, any limitations DHS introduces on the search of electronic devices at the border are purely gratuitous.

Authored by Christopher Wolf