DHS quietly expands border search policies
Nick Juliano
Published: Tuesday September 23, 2008

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The Department of Homeland Security quietly expanded its authorization to examine, copy and archive an array of documents and electronic files from citizens and visitors crossing US borders, according to reams of internal documents released Tuesday.

The changes implemented last year reverse a two-decade-old policy requiring border agents to have reasonable suspicion of a crime before reading documents someone is bringing into the country; probable cause was required before documents could be copied.

Those standards have been thrown out the window in favor of lenient standards that allow Customs and Border Patrol agents to read or copy essentially anything they would like from a person entering the United States. The new policies also make it easier for CBP to share documents it copies or confiscates with other law enforcement agencies.

Civil liberties advocates say the new standards raise troubling questions about protecting citizens' First Amendment rights and could lead to customs agents serving as and end-run around the Fourth Amendment by conducting searches that would be prohibited from other agencies.

"For more than 20 years, the government implicitly recognized that reading and copying the letters, diaries, and personal papers of travelers without reason would chill Americans' rights to free speech and free expression," said Shirin Sinnar, a staff attorney with the Asian Law Caucus.  "But now customs officials can probe into the thoughts and lives of ordinary travelers without any suspicion at all."

The ALC and the Electronic Frontier Foundation filed a Freedom of Information Act lawsuit against DHS to obtain more than 600 pages of internal documents outlining its policies concerning document collection and interviews conducted at the border. The organizations obtained the documents this summer and published the documents Tuesday.

In an interview Tuesday, Sinar said she hoped the documents' release would spur Congress to enact clearer and stricter standards governing border searches.

The documents themselves were heavily redacted, and the organizations are continuing to appeal for fuller disclosures, she said. DHS does not reveal the procedures or equipment it uses to search electronic equipment. Such disclosures could reveal its use of the CSI Stick, which allows for the quick and easy extraction of cell phone call logs, phone books, text messages and more information.

"We don't know if customs is using that or other programs," she told Raw Story, "but I suspect that they would be."

According to an analysis of the documents (pdf) published by EFF and ALC, DHS reversed several key components of border search guidelines that were instituted in 1986 and updates to the policy made in 2000.

Where customs officers previously could only "glance at documents to see if they were merchandise," the latest policy allows officers to "review and analyze" any documents in a traveler's possession with no suspicion at all. Previous prohibitions on copying documents without a traveler's permission or probable cause also were eliminated, allowing customs to "detain documents or copies for a 'reasonable period of time to perform a thorough border search.'" (Emphasis in original.)

DHS's border search policies have come under scrutiny particularly as they relate to electronic devices and information. Sen. Russ Feingold (D-WI) has raised concerns about the government's ability to copy the contents of travelers' laptops, cell phones, digital cameras and PDAs.

"The invasion of privacy represented by a search of a laptop differs by an order of magnitude from that of a suitcase," Feingold said during a June hearing on the laptop searches. " I guarantee you this: neither the drafters of the Fourth Amendment, nor the Supreme Court when it crafted the 'border search exception,' ever dreamed that tens of thousands of Americans would cross the border every day, carrying with them the equivalent of a full library of their most personal information."

A Feingold spokesman said the senator would have no immediate comment on Tuesday's release of the documents.

DHS refused to send anyone to face questions from Feingold during the June 25 hearing. Instead the agency passed along some superficial prepared testimony from a deputy DHS commissioner in charge of customs. The testimony included some anecdotes about stopping pedophiles at the border but did little to address the privacy concerns regarding the department's extraordinary search authorities. The department also provided the committee with a copy of its border search policy.

The policy provided in June, as well as the wider cache of documents made public Tuesday makes clear that DHS has wide latitude over how and when it can share the information it collects. For example, customs agents can hand over collected documents or files if they need "technical assistance" to translate or decrypt computer files or to determine whether the documents provide reasonable suspicion of a crime.

The border search policy reads, in part:

Officers may encounter information in documents or electronic devices that is not in a foreign language or encrypted, but that nevertheless requires referral to subject matter experts to determine whether the information is relevant to the laws enforced and administered by CBP.
Once the information is in the hands of another agency, that agency can keep a copy of it "to the extent that it has the independent legal authority to do so."

Such a set-up makes it quite easy for other agencies to access copies of private documents from travelers.

"It's quite easy to say you need technical assistance," Sinnar said.

Once they see what's in those documents they can rely on that information to decide whether they have the authority to hold on to them, she added.

DHS says its expanded authority is necessary. An official justified the policy to the Washington Post, which reported on the new policies Tuesday.
DHS spokeswoman Amy Kudwa said the updating of policies reflects an effort to be more transparent. In an e-mail, she wrote that the decision of U.S. Customs and Border Protection (CBP) "to change some of the standards in its old policies reflects the realities of the post-9/11 environment, the agency's expanded mission and legal authorities, and developments in the law, including the Homeland Security Act of 2003. Although certain aspects of the policies have changed, the policies have always reflected the notion that officers have the constitutional authority to inspect information presented at the border" without requiring suspicion of a particular traveler.
Civil liberties groups like EFF and ALC, though, say too many innocent Americans are getting caught up when they try to enter the country.

Amir Khan, an IT consultant who lives in the Bay Area, says he has spent between 20 and 25 hours detained by customs agents when returning from five separate trips abroad. Khan's travels took him mostly to Europe for business and once to visit family in Pakistan.

He said a border agent demanded to examine files on his laptop and quizzed him on the books he was reading, including some religious texts.

"I asked many times, 'What can I do to resolve this?'" he told Raw Story. "They told me there's nothing I can do."