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
"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
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
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