Bill Targets Laptop, Mobile Device Search and Seizures

By Roy Mark  |  Posted 2008-09-15 Print this article Print

Rep. Loretta Sanchez wants to establish guidelines for border searches and seizures of laptops, smart phones and other electronic devices that store data. Department of Homeland Security officials maintain that the Fourth Amendment does not require U.S. customs agents to have reasonable suspicion before searching laptops and digital devices, and the Ninth Circuit Court of Appeals agreed with the DHS. The Border Search Accountability Act introduced by Rep. Sanchez would curb some search and seizure procedures.

Rep. Loretta Sanchez has introduced legislation to establish guidelines for border searches of electronic devices such as laptops and smart phones. Currently, federal border agents may conduct searches and seize travelers' personal laptops and other electronic storage devices without evidence or suspicion of wrongdoing.

The Border Search Accountability Act of 2008 (H.R. 6869), introduced Sept. 11, would establish specific rules for the retention, storage, copying and sharing of personally identifiable information that may be contained in electronic devices.

"This legislation will ensure that when an individual's property is seized at a U.S. point of entry, there is a well-defined procedure in place that will protect their electronic data-especially information that does not pose a threat to our homeland security," Sanchez said in a statement.

The California Democrat said the bill would also require the DHS (Department of Homeland Security) to post information about an individual's rights related to border searches and establish a process for reporting abuses.

In addition, the legislation would require that border officials handle cases involving the Trade Secrets Act, the Privacy Act and all other governing rules and regulations pertaining to privileged and personal data, such as attorney-client privileged material, with the "utmost discretion."

Sanchez said, "I was deeply concerned to learn about the lack of protections individuals have when their electronic equipment is randomly seized," adding that the Border Search Accountability Act would allow U.S. travelers to enter and leave the country with "more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information."

In April, the Ninth Circuit Court of Appeals ruled that the Fourth Amendment does not require U.S. customs agents to have reasonable suspicion before searching laptops and digital devices. The government contends that laptops, smart phones and other devices with stored data are no different from suitcases and bags, which are routinely searched at international borders.

In May, the Public Liaison Office at the U.S. customs headquarters in Washington said, "Laptop computers may be subject to detention for violation of criminal law ... if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography or other criminal activity."

The issue made it to Congress in summer 2008 when the Senate Judiciary Committee held a hearing seeking information from the DHS about the search and seizure of electronic devices. DHS Secretary Michael Chertoff refused an invitation to testify and blocked other DHS officials from testifying.

"Aside from the privacy violation, there is reason for serious concern that these invasive searches are being targeted at Muslim Americans and Americans of Arab or South Asian descent," said Sen. Russ Feingold, D-Wis. "Many travelers from these backgrounds who have been subject to electronic searches have also been asked about their religious and political views."


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