DHS sets new policy on computer searches at border

ACLU says new rules are not adequate

Homeland Security Secretary Janet Napolitano has issued two new directives that specify the circumstances under which border and immigration agents can search laptop computers and other electronic media at the nation's borders.

The new directives apply to U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. They spell out policies involved in border searches of electronic devices and provide instructions on how such searches may be conducted. For example, the CBP directive states that searches of electronic devices will be documented in appropriate CBP systems and will be conducted in the presence of a supervisor. The directive also states that an officer may, “with or without individualized suspicion,” examine the electronic device and “review and analyze” the information, subject to various requirements and limitations.

Napolitano said the orders will help fight terrorism while also enhancing transparency, accountability and oversight. She said they are consistent with the department’s authority to search briefcases, backpacks and notebooks at U.S. borders.

The DHS Privacy Office also released today a Privacy Impact Assessment for the new directives.

However, the American Civil Liberties Union cautioned that while the new rules are a good first step, they do not go far enough to protect civil liberties.

“The new standards fail to address the fundamental constitutional problems of suspicionless searches that have been occurring at the border,” the ACLU said in a statement. The organization said it has filed a Freedom of Information Act lawsuit to review CBP’s laptop searches at the border since they were initiated in 2008.

Christopher Calabrese, counsel for the ACLU Technology and Liberty Program, said that the new policies offer two improvements: They limit the time that CBP officers can keep the laptop computers and devices they're searching, and established that the agency can retain the information gathered from the laptops and devices only if there is probable cause to suspect a crime.

Earlier this year, a House committee considered legislation that would require DHS to undertake a rule-making procedure before continuing to conduct the border computer searches.

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

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