The U.S. Department of Homeland security isn't backing down from its right to seize a traveler's laptop at customs and search it for data, but says it has only done this roughly 1,000 times in the last year.
The statement and other information from DHS comes hot on the heels of a lawsuit by the American Civil Liberties Union, seeking records of warrantless laptop searches by U.S. Customs and Border Patrol. These searches are a violation of the Fourth Amendment, the ACLU claims. DHS denies this, citing a 2008 court case that determined laptops to be a "baggage" or "merchandise," just like anything else that goes through customs.
A laptop can stay in government hands on the word of a supervisor for 5 days, but a superior manager can approve a 15-day seizure. After that, the Director of Field Operations or other equivalent manager can approve additional time in 7-day increments. If there's no probable cause or use for the data taken from the computer, customs must destroy any copies within seven days.
The ACLU applauded the time limits on holding a computer, as well as the need for probable cause to keep any information found. Still, the rights advocacy group said DHS doesn't go far enough, calling for Congress to create standards for seizure. "ACLU does not oppose border searches, but it does oppose a policy that leaves government officials free to exercise their power arbitrarily," Catherine Crump, staff attorney with the ACLU First Amendment Working Group, said in a statement. "Such a policy not only invades our privacy but can lead to racial and religious profiling.”
DHS notes that it only conducted 1,000 laptop searches on the 221 million travelers who crossed U.S. borders, and said only 46 of those searches were "in-depth." What DHS doesn't specify is how many of those searches led to arrests related to terrorism, child pornography, human trafficking or other serious crimes. This is one of those situations where you'd like to think the policy is preventing crime, but it's probably just inconveniencing a handful of passengers for the sake of keeping up appearances.
