Wednesday, May 18, 2011

The Constitution Project Report on Data Searches

A legal think tank known as The Constitution Project, has issued a report on the practice of searching digital devices carried by passengers at ports of entry. This has been a hot-button issue that has pitted privacy advocates against Customs and Border Protection's security and law enforcement mandate. Here is a link to the report.

The report concludes with a recommendation that the Department of Homeland Security amend its existing policy to require a reasonable suspicion of wrongdoing before conducting a digital search. Further, the report recommends that DHS secure a warrant before it is able to retain copies of data or seize the device for further review beyond a reasonable period. There are other recommendations including some dealing with potential racial profiling, privileged information, and the possibility that other law enforcement agencies will piggy back on Customs border search authority to get information that would otherwise not be available without a warrant.

3 comments:

Anonymous said...

Larry -

CBP and ICE make no secret of their right to search electronic devices at the border. Today's laptop, for example, is the equivalent of a mid-20th Century briefcase.

The fact that an individual CHOOSES to bring an electronic device into the country, with all the publicity given regarding search thereof by CBP and ICE is tantamount to CONSENT to such a search.

Imagine the great hue and cry if CBP/ICE were to stop searching these devices, resulting in a major terrorist act taking place.

I have NO sympathy for the views expressed by "The Constitution Project" and other bleeding hearts.

The searches are legal, PERIOD!

Your faithful Customs retiree.

Anonymous said...

@ your faithful customs retiree,

I tend to worry when it is necessary to stretch the definition of consent to include actions that have little or nothing to do with actual consent. To me, the simple fact that you have to say something is "tantamount" to consent to define consent is a big bright red flag and a slippery slope.

Jim Dickeson said...

Regardless of whether such searches by U.S. authorities are right or wrong, consider that foreign governments conduct similar activities.

Consider, too, that if your deal in technology whose export is controlled by the Commerce or State Department, you may have old forgotten technical documents on your laptop that could be acquired by foreign government. And by extension, consider that the U.S. government could find, on your return home, that you committed an export violation when you left, particularly if the search reveals that you connected to a network while abroad.

Some savvy companies don't allow such employees to travel internationally with their regular laptop, but instead issue them a scrubbed laptop.

Jim Dickeson
Import Export Geeks
Import Export Compliance Training