Policy Revision on Laptop Searches
Posted Sep 04, 2009
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Secretary Janet Napolitano of the U.S. Department of Homeland Security (DHS) has announced new DHS policy guidance on laptop searches and searches of other electronic equipment at U.S. ports of entry. Secretary Napolitano's announcement was included in a press release posted on August 27, 2009.
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Small Percentage of Laptops Searched
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In her announcement, the Secretary reported that, between October 1, 2008 and August 11, 2009, approximately 1,000 out of the 221 million travelers through U.S. ports of entry underwent laptop computer searches. Of these 1,000 searches, only 46 were categorized as in-depth searches of the contents of the computers. Some searches were brief and only included a request by a U.S. Customs and Border Protection (CBP) agent for the traveler to turn on the laptop, to ensure that it was, in fact, a working computer.
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Searches at Border Crossings are Legal
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As reported to MurthyDotCom and MurthyBulletin readers in our September 5, 2008 NewsBrief, CBP Policy Allows for Laptop Searches upon Entering the U.S., U.S. federal courts have upheld CBP's authority to check the contents of computers and electronic devices transported through border checkpoints. While U.S. courts require some minimum level of suspicion of criminal conduct or wrongdoing before a laptop may be confiscated, the simple search of a laptop and its contents (which is not destructive) does not require any suspicion at all.
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New DHS Directives on Search of Electronics
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The Secretary's press release also discusses new directives (PDF 4.7MB) on border searches of electronics that were issued by CBP and U.S. Immigration and Customs Enforcement (ICE). Both directives explain the circumstances under which CBP and ICE agents search laptop computers and other forms of electronic media. Travelers should be aware that both CBP and ICE have the right to search any form of electronic media, which CBP and ICE define as any item that may contain information, including computers, floppy and compact disks, DVDs, drives, tapes, mobile phones, personal digital assistants or PDAs, BlackBerry smart phones, cameras, and music players (including iPods and MP3 players).
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Protections for International Travelers
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While these directives largely continue existing policies, there have been a few changes made based on complaints from the traveling public. CBP agents are required, when national security and law enforcement needs allow, to conduct their searches of electronics in the presence of the traveler. This does not mean that the CBP agent has to allow the traveler view the computer or device's screen, but it does mean that the traveler should be in the same room. In addition, if a laptop or other electronic device is to be retained by CBP or ICE for decrypting or additional inspection, the agents are asked to have this inspection completed within 30 days, whenever possible.
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Conclusion
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As MurthyDotCom and MurthyBulletin readers have been cautioned in a previous article on this subject, any traveler entering the United States must understand that the electronics carried through U.S. ports of entry may be searched and possibly seized. A traveler must be responsible for and know the contents of her or his electronic devices. Individuals who allow others to use their computers or other electronics should take extra precautions to ensure that their equipment is not used for anything illegal and does not hold any potentially illegal content.