Government watchdog: Warrantless laptop searches at border are A-OK

Civil liberties office releases executive summary but full report is secret.

by Timothy B. Lee

A government office charged with defending civil liberties has declared that warrantless border searches of laptops do not raise civil liberties issues. The Office for Civil Rights and Civil Liberties at the Department of Homeland Security recently released an executive summary [PDF] of its findings, but it has refused to release the details of its analysis.

The Fourth Amendment protects Americans against unreasonable searches by domestic law enforcement, but the courts have long held that our Fourth Amendment protections are more limited when we travel internationally. Border agents can conduct random searches of passengers' luggage looking for contraband at the border. No warrant, or even reasonable suspicion of wrongdoing, is required.

The government has interpreted this rule as extending to data on electronic devices. If you travel with your laptop, the government can turn it on and rifle through your digital files. The American Civil Liberties Union has sued to stop this practice, arguing that the Fourth Amendment requires officers to have some reason to suspect a crime has been committed before snooping through travelers' personal data.

Some also contend that searching laptops without reasonable suspicion violates the First Amendment. The Civil Rights and Civil Liberties Office at the DHS, which is theoretically in charge of "promoting respect for civil rights and civil liberties in policy creation and implementation" within the organization, disagrees.

"Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights," writes Tamara Kessler, the report's author. "However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers' First Amendment rights."

In an e-mailed statement, Catherine Crump of the ACLU told Ars Technica that Kessler's position "cannot be squared with our constitutional protections for free speech and against unreasonable searches, and it is difficult to understand how engaging in purely suspicionless searches actually advances legitimate law enforcement interest."

If you'd like to read the rest of Kessler's analysis of the First Amendment issue, you're out of luck. While DHS released an executive summary of Kessler's findings, it is keeping the full report under wraps.

That rubs the ACLU the wrong way. "Given the report's troubling conclusion that its agents are entitled to the sweeping power to examine Americans' private papers, it is important that the agency make the full and complete report available," Crump told us. "The public has a strong interest in understanding the arguments and evidence that supports the report's conclusion, not just in knowing the ultimate results."

On Friday, the ACLU filed a request for the full report using the Freedom of Information Act, but the long delays and contentious litigation that often accompany the FOIA process mean that it may be many months before the public sees exactly why the DHS's civil liberties shop thinks suspicionless laptop searches at the border are consistent with the Bill of Rights.

Kessler did recommend some limited steps to prevent abuse of the government's laptop-searching powers, and the report says that DHS is putting these measures into practice. The department currently allows travelers to file a complaint if they are the victim of racial discrimination. This process will be expanded to cover coercive searches and alleged violations of free speech rights.

The report also recommends more internal auditing of laptop searches in the hopes of ferreting out evidence of misconduct. Of course, such reports may not have much effect if, like Kessler's own report, they're kept safely locked away from public scrutiny.