Monday, September 14, 2009

Laptop Seaches -- Obama's Department of Homeland Security Disappoints

The Two New DHS Directives

At the close of the Bush Administration the state of the law of laptop searches at the border was in an unfortunate state. In the leading case of U.S. v. Arnold the Ninth Circuit Court of Appeals had held, in effect, that laptops may be searched at the border even though the searching agent has no reasonable suspicion that the traveler is carrying illegal data on the laptop. Now, in the early months of the Obama administration, the matter has grown worse.

The objection to the Arnold decision (which has since gained in stature by virtue of the Supreme Court's refusal to review it) is that agents of the Customs and Border Protection (CBP) service and its companion Immigrations and Customs and Enforcement (ICE) branch, both agencies of the Department of Homeland Security (DHS), are subject to no rule whatsoever governing their right to search laptops of travelers entering or leaving the U.S. They have complete discretion. They may do as they please.

The Two New Directives

a. The Right to Search Laptops

On August 27 of this year Janet Napolitano, as Secretary of DHS, announced two new directives, one from CBP and one from ICE, governing laptop searches at the border. On the core question of the right of CBP and ICE to search laptops both Directives carry forward, in effect, the rule of the Arnold case, i.e., there is no limit.

The ICE Directive puts it as follows:
ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws set forth herein. (Section 6.1, ICE Directive.)
The operative language is, of course, the infelicitous phrase "with or without individualized suspicion." This clumsy expression was not invented by DHS for this purpose but dates back at least to a 2001 opinion of Chief Justice Rehnquist in U.S. v. Knights. The phrase has been used here by ICE to mean that its agents at the border are not restrained by a rule of reasonable suspicion or any other rule whatsoever.

The CBP Directive employs the same phrase in its grant of laptop search authority to its agents:

In the course of a border search, with or without individualized suspicion,, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law (sic). (Section 5.1.3, CBP Directive)

Thus, on the key civil liberties question, when confronted with the need to choose between a rule of reasonable suspicion or follow Arnold and dispense with such a rule, both ICE and CBP elected to follow Arnold and adopt what is in reality a no-rule rule. The Secretary of DHS obviously approved and issued the Directives. We do not know what role the White House played in the issuance of these directives, even less do we know whether the President explicitly approved. In any event, from a civil liberties perspective, the state of the law has worsened under the new administration.

b. The Right to Seize Laptops

Although both CBP and ICE adopt the same rule governing the right to search laptops, they take different approaches to the right to seize laptops.

As quoted above, the ICE Directive specifically includes the right to seize laptops within the scope of its basic no-rule rule. ICE agents "may... retain, seize, detain and share [laptops] with or without individualized suspicion...." (ICE Directive, Section 6.1.)

The CBP Directive curiously departs from the ICE Directive. Its search rule is confined to examination, review and analysis. CBP Directive, Section 5.1.3. In a separate section the CBP agent is given the right to detain a laptop "for a brief, reasonable period of time to perform a thorough border search." CBP Directive, Section 5.3.1. Up to this point the agent is still operating under the no-rule rule. Then, in a rather casual and offhand manner, the CBP Directive suddenly subjects its agents to a rule of probable cause: "...if after reviewing the information [stored in the laptop]...there is not probable cause to seize it [the laptop must be returned]." CBP Directive, Section

Whether this language of probable cause is specifically meant to give the traveler greater protection or whether it somehow slipped through the editing process in the legal department at CBP we do not know. In any event it is an odd bit of drafting.

Any protection this probable cause rule might be thought to offer the traveler is more illusory than real, however. Who determines "probable cause?" The searching officer. What standards guide him? None are given. If the CBP agent is in doubt whether he has probable cause or not does anything prevent him from calling in an ICE agent, who has authority to seize the laptop without finding probable cause, and asking him to seize the laptop? No. If the CBP agent gets it wrong and seizes a laptop without having probable cause is there anything the traveler can do about it? No. In effect, the CBP agent can comply with this rule and seize a laptop by simply declaring that he has probable cause to do so. This is less a legal rule than a suggestion, a mere bow in the direction of legality.

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